Bill Text: NY A05757 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to the use of biometric identity verification devices for the purchase of alcoholic beverages and tobacco products; authorizes a licensee, its agent or employee to determine a person's age when purchasing alcoholic beverages or tobacco products by use of a biometric identity verification device; establishes where the use of the device indicates that the person is under the age of twenty-one, the attempted purchase of the alcoholic beverage shall be denied.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-02-14 - referred to economic development [A05757 Detail]

Download: New_York-2019-A05757-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5757
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 14, 2019
                                       ___________
        Introduced  by  M.  of  A.  SCHIMMINGER -- read once and referred to the
          Committee on Economic Development
        AN ACT to amend the alcoholic beverage control law and the public health
          law, in relation to the use of biometric identity verification devices
          for the purchase of alcoholic beverages and tobacco products
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Subdivision  1  of section 65-b of the alcoholic beverage
     2  control law is amended by adding a new paragraph (d) to read as follows:
     3    (d) "Biometric identity verification device" means a commercial device
     4  that instantly verifies the identity and age of a person by an electron-
     5  ic scan of a biometric of such person, via a  fingerprint,  iris  image,
     6  facial  image,  or other biometric, or any combination thereof, which is
     7  referenced against any record described in paragraph (b) of  subdivision
     8  two of this section, where (i) the authenticity of the record was previ-
     9  ously verified by an electronic authentication process, (ii) the identi-
    10  ty  of  the record holder was previously verified through a commercially
    11  available knowledge based electronic authentication  process  and  (iii)
    12  the authenticated record was securely linked to biometrics contemporane-
    13  ously collected from the verified record holder.
    14    §  2.  Subdivision 2 of section 65-b of the alcoholic beverage control
    15  law is amended by adding a new paragraph (d) to read as follows:
    16    (d) In lieu of or in addition to accepting written evidence of age  as
    17  set forth in paragraph (b) of this subdivision, a licensee, its agent or
    18  employee  may  determine  a  person's age by use of a biometric identity
    19  verification device. In any instance where the use of the  device  indi-
    20  cates  that  the  person  is  under  the  age  of  twenty-one years, the
    21  attempted purchase of the alcoholic beverage shall be denied.
    22    § 3. Subdivision 7 of section 65-b of the alcoholic  beverage  control
    23  law,  as added by chapter 519 of the laws of 1999, is amended to read as
    24  follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03916-03-9

        A. 5757                             2
     1    7. (a) In any  proceeding  pursuant  to  subdivision  one  of  section
     2  sixty-five of this article, it shall be an affirmative defense that: (i)
     3  the  licensee, its agent or employee had determined such person's age by
     4  means of a biometric identity verification device or  that  such  person
     5  had produced a driver's license or non-driver identification card appar-
     6  ently issued by a governmental entity, successfully completed the trans-
     7  action  scan, and (ii) that the alcoholic beverage had been sold, deliv-
     8  ered or given to such person in reasonable  reliance  upon  either  such
     9  biometric identity verification device or such identification and trans-
    10  action  scan.  In  evaluating  the  applicability  of  such  affirmative
    11  defense, the liquor authority shall take into consideration any  written
    12  policy adopted and implemented by the seller to carry out the provisions
    13  of this chapter. Use of a transaction scan or biometric identity verifi-
    14  cation device shall not excuse any licensee under this chapter, or agent
    15  or  employee of such licensee, from the exercise of reasonable diligence
    16  otherwise  required  by  this   section.   Notwithstanding   the   above
    17  provisions,  any such affirmative defense shall not be applicable in any
    18  other civil or criminal proceeding, or in any other forum.
    19    (b) A licensee or agent or employee of a licensee  may  electronically
    20  or  mechanically  record and maintain only the information obtained from
    21  using a transaction  scan  or  biometric  identity  verification  device
    22  necessary  to  effectuate the purposes of this section. Such information
    23  shall be limited to the following: (i) name, (ii) date of  birth,  (iii)
    24  driver's  license  or non-driver identification number, and (iv) expira-
    25  tion date. The liquor authority and  the  state  commissioner  of  motor
    26  vehicles shall jointly promulgate any regulation necessary to govern the
    27  recording  and  maintenance  of  these  records by a licensee under this
    28  chapter. The liquor authority  and  the  commissioner  of  health  shall
    29  jointly  promulgate  any regulations necessary to ensure quality control
    30  in the use of transaction scan devices or biometric  identity  verifica-
    31  tion devices.
    32    §  4.  Subdivision  5  of section 1399-bb of the public health law, as
    33  amended by chapter 4 of the laws of 2018, is amended to read as follows:
    34    5. The distribution of tobacco products or herbal cigarettes  pursuant
    35  to subdivision two of this section or the distribution without charge of
    36  electronic  cigarettes  shall  be  made only to an individual who demon-
    37  strates, through the use of a  biometric  identity  verification  device
    38  pursuant  to  section  thirteen  hundred ninety-nine-cc of this article,
    39  through a driver's license or  other  photographic  identification  card
    40  issued by a government entity or educational institution indicating that
    41  the  individual  is  at least eighteen years of age. Such identification
    42  need not be required of any individual who reasonably appears to  be  at
    43  least  twenty-five years of age; provided, however, that such appearance
    44  shall not constitute a defense in any proceeding alleging the sale of  a
    45  tobacco  product,  electronic  cigarette  or  herbal  cigarette  or  the
    46  distribution without charge of electronic cigarettes to an individual.
    47    § 5. Subdivision 1 of section 1399-cc of  the  public  health  law  is
    48  amended by adding a new paragraph (f) to read as follows:
    49    (f) "Biometric identity verification device" means a commercial device
    50  that instantly verifies the identity and age of a person by an electron-
    51  ic  scan  of  a biometric of such person, via a fingerprint, iris image,
    52  facial image, or other biometric, or any combination thereof,  which  is
    53  referenced  against  any  record  described  subdivision  three  of this
    54  section, where (i) the authenticity of the record was  previously  veri-
    55  fied  by  electronic  authentication  process,  (ii) the identity of the
    56  record holder was previously verified through a  commercially  available

        A. 5757                             3
     1  knowledge  based electronic authentication process and (iii) the authen-
     2  ticated record  was  securely  linked  to  biometrics  contemporaneously
     3  collected from the verified record holder.
     4    §  6.  Subdivision  3  of section 1399-cc of the public health law, as
     5  amended by chapter 542 of the laws  of  2014,  is  amended  to  read  as
     6  follows:
     7    3.  Sale  of  tobacco  products,  herbal  cigarettes, liquid nicotine,
     8  shisha or electronic cigarettes in such places, other than by a  vending
     9  machine,  shall  be made only to an individual who demonstrates, through
    10  (a) a valid driver's license or non-driver's identification card  issued
    11  by  the  commissioner  of  motor  vehicles,  the federal government, any
    12  United States territory, commonwealth or  possession,  the  District  of
    13  Columbia,  a  state  government within the United States or a provincial
    14  government of the dominion of Canada, [or] (b) a valid  passport  issued
    15  by  the United States government or any other country, [or] (c) an iden-
    16  tification card issued by the armed forces of the United States, or  (d)
    17  use  of  a  biometric  identity verification device, indicating that the
    18  individual is at least eighteen years of age. Such  identification  need
    19  not  be required of any individual who reasonably appears to be at least
    20  twenty-five years of age, provided, however, that such appearance  shall
    21  not constitute a defense in any proceeding alleging the sale of a tobac-
    22  co  product,  herbal  cigarettes,  liquid nicotine, shisha or electronic
    23  cigarettes to an individual under eighteen years of age.
    24    § 7. Subdivisions 4, 5, and 6 of section 1399-cc of the public  health
    25  law,  as amended by chapter 542 of the laws of 2014, are amended to read
    26  as follows:
    27    4. (a) Any person  operating  a  place  of  business  wherein  tobacco
    28  products, herbal cigarettes, liquid nicotine, shisha or electronic ciga-
    29  rettes  are sold or offered for sale may perform a transaction scan as a
    30  precondition for such purchases, or use a biometric  identity  verifica-
    31  tion device.
    32    (b)  In  any  instance  where the information deciphered by the trans-
    33  action scan fails to match  the  information  printed  on  the  driver's
    34  license  or non-driver identification card, [or] if the transaction scan
    35  indicates that the information is false or fraudulent, or where the  use
    36  of a biometric identity verification device indicates that the person is
    37  under  the age of eighteen years of age, the attempted transaction shall
    38  be denied.
    39    (c) In any proceeding pursuant to  section  thirteen  hundred  ninety-
    40  nine-ee  of  this  article,  it shall be an affirmative defense that the
    41  licensee, or agent or employee of a  licensee  under  this  chapter  had
    42  determined  such person's age by means of a biometric identity verifica-
    43  tion device or that such person had produced a driver's license or  non-
    44  driver  identification  card apparently issued by a governmental entity,
    45  successfully completed that transaction scan, and that the tobacco prod-
    46  uct, herbal cigarettes or liquid nicotine had been  sold,  delivered  or
    47  given to such person in reasonable reliance upon such identification and
    48  transaction  scan.  In  evaluating the applicability of such affirmative
    49  defense the commissioner shall take into consideration any written poli-
    50  cy adopted and implemented by the seller to effectuate the provisions of
    51  this chapter. Use of a transaction scan or biometric identity  verifica-
    52  tion  device  shall  not excuse any person operating a place of business
    53  wherein tobacco products, herbal cigarettes, liquid nicotine, shisha  or
    54  electronic cigarettes are sold, or the agent or employee of such person,
    55  from  the  exercise  of  reasonable diligence otherwise required by this
    56  chapter. Notwithstanding the  above  provisions,  any  such  affirmative

        A. 5757                             4
     1  defense  shall not be applicable in any civil or criminal proceeding, or
     2  in any other forum.
     3    5.  A  licensee or agent or employee of such licensee shall only use a
     4  device capable of deciphering any electronically readable  format  or  a
     5  biometric  identity verification device, and shall only use the informa-
     6  tion recorded and maintained through the use of such  devices,  for  the
     7  purposes  contained  in subdivision four of this section. No licensee or
     8  agent or employee of a licensee shall resell or disseminate the informa-
     9  tion recorded or obtained during such a scan or through  the  use  of  a
    10  biometric identity verification device to any third person. Such prohib-
    11  ited  resale  or dissemination includes but is not limited to any adver-
    12  tising,  marketing  or  promotional  activities.    Notwithstanding  the
    13  restrictions  imposed  by this subdivision, such records may be released
    14  pursuant to a court ordered subpoena or pursuant to  any  other  statute
    15  that  specifically  authorizes  the  release  of  such information. Each
    16  violation of this subdivision shall be punishable by a civil penalty  of
    17  not more than one thousand dollars.
    18    6.  A  licensee  or agent or employee of such a licensee may electron-
    19  ically or mechanically record and maintain only the information  from  a
    20  transaction  scan  or  use  of  a biometric identity verification device
    21  necessary to effectuate this section. Such information shall be  limited
    22  to  the  following: (a) name, (b) date of birth, (c) driver's license or
    23  non-driver identification number, and (d) expiration date.  The  commis-
    24  sioner and state commissioner of motor vehicles shall jointly promulgate
    25  any  regulations  necessary  to  govern the recording and maintenance of
    26  these records produced from a transaction scan by a licensee under  this
    27  chapter.  The  commissioner and the state liquor authority shall jointly
    28  promulgate any regulation necessary to ensure quality control in the use
    29  of the transaction scan devices under this chapter and article  five  of
    30  the alcoholic beverage control law.
    31    §  8.  This  act shall take effect on the ninetieth day after it shall
    32  have become a law. Effective immediately the addition, amendment  and/or
    33  repeal  of  any  rule  or regulation necessary for the implementation of
    34  this act on its effective date are authorized to be made  and  completed
    35  on or before such effective date.
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