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This entry was published on 2019-11-15
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SECTION 1399-CC
Sale of tobacco products, herbal cigarettes, liquid nicotine, shisha, rolling papers or smoking paraphernalia to minors prohibited
Public Health (PBH) CHAPTER 45, ARTICLE 13-F
§ 1399-cc. Sale of tobacco products, herbal cigarettes, liquid
nicotine, shisha, rolling 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
commissioner 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
employee of such licensee under this chapter;

(c) "Smoking paraphernalia" means any pipe, water pipe, hookah,
rolling papers, vaporizer or any other device, equipment or apparatus
designed for the inhalation of tobacco;

(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
identification card presented as a precondition for the purchase of a
tobacco product or herbal cigarettes pursuant to subdivision three of
this section; and

(e) "Liquid nicotine", "electronic liquid" or "e-liquid" means a
liquid composed of nicotine and other chemicals, and which is sold as a
product that may be used in an electronic cigarette.

2. Any person operating a place of business wherein tobacco products,
herbal cigarettes, liquid nicotine, shisha or electronic cigarettes, are
sold or offered for sale is prohibited from selling such products,
herbal cigarettes, liquid nicotine, shisha, electronic cigarettes or
smoking paraphernalia to individuals under twenty-one 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, LIQUID NICOTINE, ELECTRONIC CIGARETTES, ROLLING PAPERS OR
SMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONE 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, liquid nicotine,
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 driver's license or non-driver's identification card issued
by the commissioner 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 twenty-one 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, herbal cigarettes, liquid
nicotine, shisha or electronic cigarettes to an individual under
twenty-one years of age.

4. (a) Any person operating a place of business wherein tobacco
products, herbal cigarettes, liquid nicotine, 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
transaction 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, herbal cigarettes
or liquid nicotine had been sold, delivered or given to such person in
reasonable reliance upon such identification and transaction scan. In
evaluating the applicability of such affirmative defense the
commissioner shall take into consideration 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 tobacco products, herbal cigarettes, liquid
nicotine, 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 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
electronically 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 transaction 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,
herbal cigarettes, liquid nicotine, 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, liquid
nicotine, shisha or electronic 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 twenty-one years of age or older.