senate Bill S3493

2013-2014 Legislative Session

Requires the presentation of photographic identification for the purchase of tobacco products and alcoholic beverages

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to health
Feb 04, 2013 referred to health

S3493 - Bill Details

See Assembly Version of this Bill:
A7107
Current Committee:
Law Section:
Public Health Law
Laws Affected:
Amd §§1399-cc & 1399-ee, Pub Health L; amd §65, ABC L

S3493 - Bill Texts

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Requires the presentation of photographic identification for the purchase of tobacco products and alcoholic beverages.

view sponsor memo
BILL NUMBER:S3493

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, disci-
pline or retrain the offending employee in order to prevent a recur-
rence.

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 under-
age 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 under-
age sale violation, and to establish an affirmative defense for a licen-
see 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 alco-
holic beverage customer who appears to be under 21. Even with proper
training, this ultimately requires guesswork on the part of store cash-
iers, 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 pres-
ent 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 agen-
cy'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

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

                                  3493

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            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 tobacco

 EXPLANATION--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.

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