N.Y. Alcoholic Beverage Control Law § 65-b: Offense for one under age of twenty-one years to purchase or attempt to purchase an alcoholic beverage through fraudulent means

§ 65-b. Offense for one under age of twenty-one years to purchase or

attempt to purchase an alcoholic beverage through fraudulent means. 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 magnetic strip or

bar code of a driver's license or non-driver identification card issued

by the 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; and

(c) "Transaction scan" means the process involving a device capable of

deciphering any electronically readable format 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 an alcoholic beverage as required by subdivision two

of this section or as a precondition for admission to an establishment

licensed for the on-premises sale of alcoholic beverages where admission

is restricted to persons twenty-one years or older.

2. (a) No person under the age of twenty-one years shall present or

offer to any licensee under this chapter, or to the agent or employee of

such licensee, any written evidence of age which is false, fraudulent or

not actually his own, for the purpose of purchasing or attempting to

purchase any alcoholic beverage.

(b) No licensee, or agent or employee of such licensee shall accept as

written evidence of age by any such person for the purchase of any

alcoholic beverage, any documentation other than: (i) a valid driver's

license or non-driver 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 (ii) a valid passport issued by the United States government

or any other country, or (iii) an identification card issued by the

armed forces of the United States. Upon the presentation of such

driver's license or non-driver identification card issued by a

governmental entity, such licensee or agent or employee thereof may

perform a transaction scan as a precondition to the sale of any

alcoholic beverage. Nothing in this section shall prohibit a licensee or

agent or employee from performing such a transaction scan on any of the

other documents listed in this subdivision if such documents include a

bar code or magnetic strip that that may be scanned by a device capable

of deciphering any electronically readable format.

(c) In instances where the information deciphered by the transaction

scan fails to match the information printed on the driver's license or

non-driver identification card presented by the card holder, or if the

transaction scan indicates that the information is false or fraudulent,

the attempted purchase of the alcoholic beverage shall be denied.

3. A person violating the provisions of paragraph (a) of subdivision

two of this section shall be guilty of a violation and shall be

sentenced in accordance with the following:

(a) For a first violation, the court shall order payment of a fine of

not more than one hundred dollars and/or an appropriate amount of

community service not to exceed thirty hours. In addition, the court may

order completion of an alcohol awareness program established pursuant to

section 19.25 of the mental hygiene law.

(b) For a second violation, the court shall order payment of a fine of

not less than fifty dollars nor more than three hundred fifty dollars

and/or an appropriate amount of community service not to exceed sixty

hours. The court also shall order completion of an alcohol awareness

program as referenced in paragraph (a) of this subdivision if such

program has not previously been completed by the offender, unless the

court determines that attendance at such program is not feasible due to

the lack of availability of such program within a reasonably close

proximity to the locality in which the offender resides or matriculates,

as appropriate.

(c) For third and subsequent violations, the court shall order payment

of a fine of not less than fifty dollars nor more than seven hundred

fifty dollars and/or an appropriate amount of community service not to

exceed ninety hours. The court also shall order that such person submit

to an evaluation by an appropriate agency certified or licensed by the

office of alcoholism and substance abuse services to determine whether

the person suffers from the disease of alcoholism or alcohol abuse,

unless the court determines that under the circumstances presented such

an evaluation is not necessary, in which case the court shall state on

the record the basis for such determination. Payment for such evaluation

shall be made by such person. If, based on such evaluation, a need for

treatment is indicated, such person may choose to participate in a

treatment plan developed by an agency certified or licensed by the

office of alcoholism and substance abuse services. If such person elects

to participate in recommended treatment, the court shall order that

payment of such fine and community service be suspended pending the

completion of such treatment.

(d) Evaluation procedures. For purposes of this subdivision, the

following shall apply:

(i) The contents of an evaluation pursuant to paragraph (c) of this

subdivision shall be used for the sole purpose of determining if such

person suffers from the disease of alcoholism or alcohol abuse.

(ii) The agency designated by the court to perform such evaluation

shall conduct the evaluation and return the results to the court within

thirty days, subject to any state or federal confidentiality law, rule

or regulation governing the confidentiality of alcohol and substance

abuse treatment records.

(iii) The office of alcoholism and substance abuse services shall make

available to each supreme court law library in this state, or, if no

supreme court law library is available in a certain county, to the

county court law library of such county, a list of agencies certified to

perform evaluations as required by subdivision (f) of section 19.07 of

the mental hygiene law.

(iv) All evaluations required under this subdivision shall be in

writing and the person so evaluated or his or her counsel shall receive

a copy of such evaluation prior to its use by the court.

(v) A minor evaluated under this subdivision shall have, and shall be

informed by the court of, the right to obtain a second opinion regarding

his or her need for alcoholism treatment.

4. A person violating the provisions of paragraph (b) of subdivision

two of this section shall be guilty of a violation punishable by a fine

of not more than one hundred dollars, and/or an appropriate amount of

community service not to exceed thirty hours. In addition, the court may

order completion of an alcohol training awareness program established

pursuant to subdivision twelve of section seventeen of this chapter

where such program is located within a reasonably close proximity to the

locality in which the offender is employed or resides.

5. No determination of guilt pursuant to this section shall operate as

a disqualification of any such person subsequently to hold public

office, public employment, or as a forfeiture of any right or privilege

or to receive any license granted by public authority; and no such

person shall be denominated a criminal by reason of such determination.

6. In addition to the penalties otherwise provided in subdivision

three of this section, if a determination is made sustaining a charge of

illegally purchasing or attempting to illegally purchase an alcoholic

beverage, the court may suspend such person's license to drive a motor

vehicle and the privilege of an unlicensed person of obtaining such

license, in accordance with the following and for the following periods,

if it is found that a driver's license was used for the purpose of such

illegal purchase or attempt to illegally purchase; provided, however,

that where a person is sentenced pursuant to paragraph (b) or (c) of

subdivision three of this section, the court shall impose such license

suspension if it is found that a driver's license was used for the

purpose of such illegal purchase or attempt to illegally purchase:

(a) For a first violation of paragraph (a) of subdivision two of this

section, a three month suspension.

(b) For a second violation of paragraph (a) of subdivision two of this

section, a six month suspension.

(c) For a third or subsequent violation of paragraph (a) of

subdivision two of this section, a suspension for one year or until the

holder reaches the age of twenty-one, whichever is the greater period of

time.

Such person may thereafter apply for and be issued a restricted use

license in accordance with the provisions of section five hundred thirty

of the vehicle and traffic law.

7. (a) In any proceeding pursuant to subdivision one of section

sixty-five 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 the

transaction scan, and that the alcoholic beverage 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 liquor authority shall take into

consideration any written policy adopted and implemented by the seller

to carry out the provisions of this chapter. Use of a transaction scan

shall not excuse any licensee under this chapter, or agent or employee

of such licensee, from the exercise of reasonable diligence otherwise

required by this section. Notwithstanding the above provisions, any such

affirmative defense shall not be applicable in any other civil or

criminal proceeding, or in any other forum.

(b) A licensee or agent or employee of a licensee may electronically

or mechanically record and maintain only the information from a

transaction scan necessary to effectuate the purposes of this section.

Such information shall be limited to the following: (i) name, (ii) date

of birth, (iii) driver's license or non-driver identification number,

and (iv) expiration date. The liquor authority and the state

commissioner of motor vehicles shall jointly promulgate any regulation

necessary to govern the recording and maintenance of these records by a

licensee under this chapter. The liquor authority and the commissioner

of health shall jointly promulgate any regulations necessary to ensure

quality control in the use of transaction scan devices.

8. A licensee or agent or employee of such licensee shall only use the

information recorded and maintained through the use of such devices for

the purposes contained in paragraph (a) of subdivision seven of this

section, and shall only use such devices for the purposes contained in

subdivision two of this section. No licensee or agent or employee of a

licensee shall resell or disseminate the information recorded during

such 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.