Senate Bill S1871A

                                BILL NUMBER:S1871A

TITLE OF BILL:  An act to amend the general obligations law, in
relation to compensation for injury caused by the illegal sale of
alcoholic beverages to a person under the age of twenty-one years

PURPOSE:  Extends dram shop liability to cover persons who sell false
identification to persons less than 21 years of age.

SUMMARY OF PROVISIONS:  Adds a new paragraph (b) to section 11-100(1)
of the General Obligations Law providing that any third party injured
as the result of the intoxication or impairment of ability of any
person under the age of 21 years shall have a right of action against
any person or entity that produced and directly or indirectly sold a
minor false identification which was used to obtain or procure
alcoholic beverages that led to the intoxication of the individual
causing the injury. The former paragraph 11-100(1) has been
re-identified as paragraph 11-100 (1)(a).

Under proposed section 11-100 (1)(b), specific knowledge by the
producer and seller of the fake identification that the minor procured
alcoholic beverages with the identification is not necessary, as it is
reasonably expected that when an identification is sold
misrepresenting a minor's age, it could be used for illegal purposes.
Case law has interpreted previous application of section 11-100 to
require that the defendant had awareness of and authorized the
              

consumption of alcohol by minors. The new section 11-100 (1)(a) will
still be applied in the same way. However, new section 11-100 (1)(b)
clarifies that there is no knowledge requirement.

JUSTIFICATION:  Despite significant progress over the past 20 years,
underage drinking is a complex problem that persists in communities
across the nation.  The battle to restrict access to alcohol by those
under the legal purchase age must be fought on many fronts, including
holding those who assist knowingly AND presumptively in the
procurement of alcoholic beverages to minors civilly liable.

The Dram Shop Act provides a cause of action against any person who
unlawfully sells or assists in procuring alcohol for an intoxicated
person or a person under the age of twenty-one. NY Gen. Oblig. Law
sections 11-100 and 11-101. The sale of alcohol to any person visibly
intoxicated or any person under twenty-one is prohibited, as is
knowingly causing the intoxication of a person under twenty-one by
furnishing or assisting in the procurement of the alcoholic beverage.
Forty-two states and the District of Columbia have Dram Shop laws.
The earliest dram shop laws date from the 19th century temperance
movement. New York's was adopted in 1921 as section 16 of the Civil
Rights Law, and its substance was transferred to section 11-101 of the
General Obligations Law in 1964.

Under New York's General Obligations Law 11-100, one of the Dram Shop
laws, if someone is injured by an intoxicated minor, the injured
victim has a right to bring a lawsuit against the person who caused or
contributed to the intoxication of the minor by unlawfully selling to,
or assisting in the procuring of liquor for, the minor. In order to be
held liable, the procurer of the alcohol must have known, or had
reasonable cause to believe, that the person he was providing the


alcoholic drink to was under the age of 21. Under the law, even an
under-aged person who provides alcohol to another under-aged person
can be held liable to the victims.

In these cases, the seller or social provider of the actual alcohol to
the minor can be found liable for any injuries to a third party caused
by that intoxicated minor. But what about the instance where the
alcohol was obtained via fake identification? In these cases, the
producer and seller of the fake identification plays an indispensable
role in making the alcohol available to the under-aged person.

It is only reasonable that the state place responsibility for the
damages caused by underage intoxicants on those who not only profited
from the sale of the alcohol, as current laws do, but on those who
profited from the sale of the identification that enabled them to buy
the alcohol.

Until now, Courts have refused to hold the producer and/or seller of
the fake identification liable under Dram Shop laws. In Etu v.
Cumberland Farms, 148 A.D. 2d 821 (1989), the Third Department held
that the Spencer Gifts retail chain was not responsible when a 15
year-old boy purchased a do-it-yourself fake ID kit and used the ID he
made to purchase beer. After becoming intoxicated, he stole a car and
died in a one-car accident. Plaintiffs argued that it was reasonably
foreseeable to Spencer Gifts when they placed this simulated driver's
license into the stream of commerce that it would be used by minors to
misrepresent their age to purchase alcohol, but the Court ruled that
the company's behavior did not meet the state's narrow definition of
unlawfully furnishing or assisting in procuring alcohol under the Dram
Shop laws.

As previously discussed, the proposed legislation would amend section
11-100 to provide a right of action by an injured party against any
person selling false identification to a minor which is subsequently
used to obtain alcohol. In doing so, this bill would further the goals
of existing Dram Shop laws that are intended to protect the general
public from the hazards of irresponsibly furnishing alcohol to minors
and intoxicated patrons.

LEGISLATIVE HISTORY:  2008 - S.6528 - Referred to Judiciary

FISCAL IMPLICATIONS:  None to the state.

EFFECTIVE DATE:  This act shall take effect immediately.