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

                                   453

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend the alcoholic  beverage  control  law,  in  relation  to
  increasing  the penalties imposed on a person under the age of twenty-
  one years to purchase or attempt to  purchase  an  alcoholic  beverage
  through fraudulent means, and to amend the vehicle and traffic law, in
  relation to requiring a personal identification number for individuals
  applying for a duplicate or amended license or permit

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 65-b of the  alcoholic  beverage  control  law,  as
amended  by chapter 519 of the laws of 1999 and the opening paragraph of
subdivision 6 as amended by chapter 503 of the laws of 2000, is  amended
to read as follows:
  S  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 elec-
tronically readable format" or "device" shall mean any commercial device
or combination of devices used at a point of sale or entry that is capa-
ble 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 employ-
ee 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD03593-01-9

S. 453                              2

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 alco-
holic  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 driv-
er's license or non-driver identification card issued by a  governmental
entity,  such licensee or agent or employee thereof may perform a trans-
action 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  deci-
phering 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 commu-
nity 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  thirty
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 prox-
imity  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 thirty 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

S. 453                              3

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] PUNISHABLE BY A  FINE  OF  NOT  LESS  THAN
SEVEN HUNDRED FIFTY DOLLARS NOR MORE THAN TWENTY-FIVE HUNDRED DOLLARS OR
BY  IMPRISONMENT  FOR  NOT MORE THAN TWELVE MONTHS, OR BY BOTH SUCH FINE
AND IMPRISONMENT. IN ADDITION, THE COURT  MAY  ORDER  COMPLETION  OF  AN
ALCOHOL  AWARENESS  PROGRAM ESTABLISHED PURSUANT TO SECTION 19.25 OF THE
MENTAL HYGIENE LAW.
  [(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 coun-
ty 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 writ-
ing 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

S. 453                              4

license, [in accordance with the following and for the  following  peri-
ods,]  FOR  ONE  YEAR OR UNTIL THE HOLDER REACHES THE AGE OF TWENTY-ONE,
WHICHEVER IS A GREATER PERIOD OF TIME, 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  subdivi-
sion  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, deliv-
ered or given to such person in reasonable reliance upon such  identifi-
cation  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 affirma-
tive  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 trans-
action 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 promo-
tional 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

S. 453                              5

the  release  of  such  information.  Each violation of this subdivision
shall be punishable by a civil penalty of not  more  than  one  thousand
dollars.
  S 2. Section 65-b of the alcoholic beverage control law, as amended by
chapter 383 of the laws of 1998 and the opening paragraph of subdivision
5  as  amended by chapter 503 of the laws of 2000, is amended to read as
follows:
  S 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  ELEC-
TRONICALLY READABLE FORMAT" OR "DEVICE" SHALL MEAN ANY COMMERCIAL DEVICE
OR COMBINATION OF DEVICES USED AT A POINT OF SALE OR ENTRY THAT IS CAPA-
BLE 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 EMPLOY-
EE 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 alco-
holic  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.
  [2.] 3. A person violating the provisions of paragraph (a) of subdivi-
sion [one] 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 commu-
nity 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  thirty
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

S. 453                              6

the lack of availability of such program within a reasonably close prox-
imity  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  thirty 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] PUNISHABLE BY A  FINE  OF  NOT  LESS  THAN
SEVEN HUNDRED FIFTY DOLLARS NOR MORE THAN TWENTY-FIVE HUNDRED DOLLARS OR
BY  IMPRISONMENT  FOR  NOT MORE THAN TWELVE MONTHS, OR BY BOTH SUCH FINE
AND IMPRISONMENT. IN ADDITION, THE COURT  MAY  ORDER  COMPLETION  OF  AN
ALCOHOL  AWARENESS  PROGRAM ESTABLISHED PURSUANT TO SECTION 19.25 OF THE
MENTAL HYGIENE LAW.
  [(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 coun-
ty 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 writ-
ing 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.
  3.] 4. A person violating the provisions of paragraph (b) of  subdivi-
sion [one] 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 proximi-
ty to the locality in which the offender is employed or resides.

S. 453                              7

  [4.] 5. No determination of guilt pursuant to this section shall oper-
ate 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].
  [5.] 6. In addition to the penalties otherwise provided in subdivision
[two]  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] FOR ONE YEAR OR UNTIL THE HOLDER REACHES THE AGE OF TWENTY-ONE,
WHICHEVER  IS  A  GREATER PERIOD OF TIME, 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 two of this section, the
court  shall  impose such license suspension if it is found that a driv-
er'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 one of this
section, a three month suspension.
  (b) For a second violation of paragraph (a) of subdivision one of this
section, a six month suspension.
  (c) For a third or subsequent violation of paragraph (a)  of  subdivi-
sion  one 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.
  S  3.  The  vehicle and traffic law is amended by adding a new section
505-a to read as follows:
  S 505-A. DUPLICATE AND AMENDED LICENSES AND PERMITS;  INTERNET  TRANS-
ACTIONS.  ANY  INDIVIDUAL  SEEKING  A  DUPLICATE  OR  AMENDED LICENSE OR
PERMIT, PURSUANT TO SECTION FIVE HUNDRED FIVE OF THIS  ARTICLE,  THROUGH
THE  DEPARTMENT'S  WEBSITE, SHALL BE REQUIRED TO OBTAIN A PERSONAL IDEN-
TIFICATION NUMBER FROM  THE  DEPARTMENT.  SUCH  PERSONAL  IDENTIFICATION
NUMBER  SHALL BE SENT TO THE APPLICANT'S REGISTERED ADDRESS WITHIN THREE
DAYS TO VERIFY AUTHENTICITY OF THE APPLICANT. THE APPLICANT  SHALL  THEN
PROVIDE  ALL  INFORMATION  REQUIRED BY SECTION FIVE HUNDRED FIVE OF THIS
ARTICLE.
  S 4. This act shall take effect the first of November next  succeeding
the  date  on  which it shall have become a law; provided, however, that
the amendments to section 65-b of the  alcoholic  beverage  control  law
made  by  section one of this act shall be subject to the expiration and
reversion of such section pursuant to section 4 of chapter  519  of  the
laws  of 1999, as amended, when upon such date the provisions of section
two of this act shall take effect; provided, further, that  the  commis-
sioner  of  motor vehicles is authorized to promulgate any and all rules
and regulations and take any other measures necessary to implement  this
act on its effective date, on or before such date.