S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4269

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 25, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation  to  prohibiting  the
  sale of hookahs, shisha and water pipes to minors

  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  508 of the laws of 2000, subdivision 3 as separately amended by
chapter 508 of the laws of 2000 and chapter 162 of  the  laws  of  2002,
subdivision  7  as amended by chapter 13 of the laws of 2003, is amended
to read as follows:
  S 1399-cc. Sale of tobacco products, herbal cigarettes, SHISHA,  roll-
ing  papers or [pipes] 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; [and]
  (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 tobacco

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09492-01-1

              

S. 4269                             2

product or herbal cigarettes  pursuant  to  subdivision  three  of  this
section;
  2.  Any  person operating a place of business wherein tobacco products
[or], herbal cigarettes OR SHISHA, are  sold  or  offered  for  sale  is
prohibited  from  selling  such  products,  herbal  cigarettes, [rolling
papers or pipes] SHISHA 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 CIGA-
RETTES, CIGARS, CHEWING  TOBACCO,  POWDERED  TOBACCO,  SHISHA  OR  OTHER
TOBACCO  PRODUCTS,  HERBAL CIGARETTES, ROLLING PAPERS OR [PIPES] 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 [or], herbal cigarettes OR SHISHA in  such
places,  other than by a vending machine, shall be made only to an indi-
vidual who demonstrates, through (a) a valid driver's  license  or  non-
driver's  identification  card issued by the commissioner of motor vehi-
cles, 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 twenty-five years  of  age,  provided,
however,  that  such  appearance  shall  not constitute a defense in any
proceeding alleging the sale of a tobacco  product  [or],  herbal  ciga-
rettes OR SHISHA to an individual under eighteen years of age.
  4.  (a)  Any  person  operating  a  place  of business wherein tobacco
products [or], herbal cigarettes OR SHISHA 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.
  (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 [or], herbal cigarettes OR SHISHA 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 applicable in any
civil or criminal proceeding, or in any other forum.
  5. 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

S. 4269                             3

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. A licensee or agent or employee of such a  licensee  may  electron-
ically  or  mechanically record and maintain only the information from a
transaction scan necessary to effectuate this section. Such  information
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.  No  person  operating a place of business wherein tobacco products
[or], herbal cigarettes OR SHISHA are sold or  offered  for  sale  shall
sell,  permit to be sold, offer for sale or display for sale any tobacco
product [or], herbal cigarettes OR SHISHA 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. This act shall take effect immediately.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4269--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 25, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed  to  the  Committee  on  Health  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend the public health law, in relation to prohibiting the
  sale of hookahs, shisha and water pipes to minors

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    Section  1399-aa of the public health law is amended by
adding a new subdivision 12 to read as follows:
  12. "SHISHA" MEANS ANY PRODUCT MADE  PRIMARILY  OF  TOBACCO  OR  OTHER
LEAF,  OR  ANY COMBINATION THEREOF, SMOKED OR INTENDED TO BE SMOKED IN A
HOOKAH OR WATER PIPE.
  S 2.  Section 1399-cc of the public health law, as amended by  chapter
508  of the laws of 2000, subdivision 3 as separately amended by chapter
508 of the laws of 2000 and chapter 162 of the laws of 2002, subdivision
7 as amended by chapter 13 of the laws of 2003, is amended  to  read  as
follows:
  S  1399-cc. Sale of tobacco products, herbal cigarettes, SHISHA, roll-
ing papers or [pipes] 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; [and]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09492-03-1

              

S. 4269--A                          2

  (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  tobacco
product  or  herbal  cigarettes  pursuant  to  subdivision three of this
section;
  2. Any person operating a place of business wherein  tobacco  products
[or],  herbal  cigarettes  OR  SHISHA,  are  sold or offered for sale is
prohibited from  selling  such  products,  herbal  cigarettes,  [rolling
papers  or  pipes]  SHISHA 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  CIGA-
RETTES,  CIGARS,  CHEWING  TOBACCO,  POWDERED  TOBACCO,  SHISHA OR OTHER
TOBACCO PRODUCTS, HERBAL CIGARETTES, ROLLING PAPERS OR  [PIPES]  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 [or], herbal cigarettes OR SHISHA in such
places, other than by a vending machine, shall be made only to an  indi-
vidual  who  demonstrates,  through (a) a valid driver's license or non-
driver's identification card issued by the commissioner of  motor  vehi-
cles,  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 twenty-five years of age, provided,
however, that such appearance shall not  constitute  a  defense  in  any
proceeding  alleging  the  sale  of a tobacco product [or], herbal ciga-
rettes OR SHISHA to an individual under eighteen years of age.
  4. (a) Any person  operating  a  place  of  business  wherein  tobacco
products  [or], herbal cigarettes OR SHISHA 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.
  (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 [or], herbal cigarettes OR SHISHA are sold, or the agent or
employee of such person,  from  the  exercise  of  reasonable  diligence

S. 4269--A                          3

otherwise   required   by   this   chapter.  Notwithstanding  the  above
provisions, any such affirmative defense shall not be applicable in  any
civil or criminal proceeding, or in any other forum.
  5.  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.  A  licensee  or agent or employee of such a licensee may electron-
ically or mechanically record and maintain only the information  from  a
transaction  scan necessary to effectuate this section. Such information
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. No person operating a place of business  wherein  tobacco  products
[or],  herbal  cigarettes  OR  SHISHA are sold or offered for sale shall
sell, permit to be sold, offer for sale or display for sale any  tobacco
product  [or],  herbal  cigarettes  OR SHISHA 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  3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.