S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10871
 
                           I N  A S S E M B L Y
 
                               July 24, 2020
                                ___________
 
 Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Walker) --
   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:
 
   Section  1.  Subdivision  1  of section 65-b of the alcoholic beverage
 control law is amended by adding a new paragraph (d) to read as follows:
   (D) "BIOMETRIC IDENTITY VERIFICATION DEVICE" MEANS A COMMERCIAL DEVICE
 THAT INSTANTLY VERIFIES THE IDENTITY AND AGE OF A PERSON BY AN ELECTRON-
 IC SCAN OF A BIOMETRIC OF SUCH PERSON, VIA A  FINGERPRINT,  IRIS  IMAGE,
 FACIAL  IMAGE,  OR OTHER BIOMETRIC, OR ANY COMBINATION THEREOF, WHICH IS
 REFERENCED AGAINST ANY RECORD DESCRIBED IN PARAGRAPH (B) OF  SUBDIVISION
 TWO OF THIS SECTION, WHERE (I) THE AUTHENTICITY OF THE RECORD WAS PREVI-
 OUSLY VERIFIED BY AN ELECTRONIC AUTHENTICATION PROCESS, (II) THE IDENTI-
 TY  OF  THE RECORD HOLDER WAS PREVIOUSLY VERIFIED THROUGH A COMMERCIALLY
 AVAILABLE KNOWLEDGE BASED ELECTRONIC AUTHENTICATION  PROCESS  AND  (III)
 THE AUTHENTICATED RECORD WAS SECURELY LINKED TO BIOMETRICS CONTEMPORANE-
 OUSLY COLLECTED FROM THE VERIFIED RECORD HOLDER.
   §  2.  Subdivision 2 of section 65-b of the alcoholic beverage control
 law is amended by adding a new paragraph (d) to read as follows:
   (D) IN LIEU OF OR IN ADDITION TO ACCEPTING WRITTEN EVIDENCE OF AGE  AS
 SET FORTH IN PARAGRAPH (B) OF THIS SUBDIVISION, A LICENSEE, ITS AGENT OR
 EMPLOYEE  MAY  DETERMINE  A  PERSON'S AGE BY USE OF A BIOMETRIC IDENTITY
 VERIFICATION DEVICE. IN ANY INSTANCE WHERE THE USE OF THE  DEVICE  INDI-
 CATES  THAT  THE  PERSON  IS  UNDER  THE  AGE  OF  TWENTY-ONE YEARS, THE
 ATTEMPTED PURCHASE OF THE ALCOHOLIC BEVERAGE SHALL BE DENIED.
   § 3. Subdivision 7 of section 65-b of the alcoholic  beverage  control
 law,  as added by chapter 519 of the laws of 1999, is amended to read as
 follows:
   7. (a) In any  proceeding  pursuant  to  subdivision  one  of  section
 sixty-five of this article, it shall be an affirmative defense that: (I)
 THE  LICENSEE, ITS AGENT OR EMPLOYEE HAD DETERMINED SUCH PERSON'S AGE BY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD03916-06-0

 A. 10871                            2
 
 MEANS OF A BIOMETRIC IDENTITY VERIFICATION DEVICE OR  THAT  such  person
 had produced a driver's license or non-driver identification card appar-
 ently issued by a governmental entity, successfully completed the trans-
 action  scan, and (II) that the alcoholic beverage had been sold, deliv-
 ered or given to such person in reasonable  reliance  upon  EITHER  such
 BIOMETRIC IDENTITY VERIFICATION DEVICE OR SUCH identification and trans-
 action  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 OR BIOMETRIC IDENTITY VERIFI-
 CATION DEVICE 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 OBTAINED from
 USING a transaction  scan  OR  BIOMETRIC  IDENTITY  VERIFICATION  DEVICE
 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) expira-
 tion 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 OR BIOMETRIC  IDENTITY  VERIFICA-
 TION DEVICES.
   §  4.  Subdivision  5  of section 1399-bb of the public health law, as
 amended by section 4 of part EE of chapter 56 of the laws  of  2020,  is
 amended to read as follows:
   5.  The distribution of tobacco products, electronic cigarettes, vapor
 products intended or reasonably expected to be  used  with  or  for  the
 consumption  of  nicotine,  or herbal cigarettes pursuant to subdivision
 two of this section or the distribution  without  charge  of  electronic
 cigarettes, or vapor products intended or reasonably expected to be used
 with  or for the consumption of nicotine, shall be made only to an indi-
 vidual who demonstrates, THROUGH THE USE OF A BIOMETRIC IDENTITY VERIFI-
 CATION DEVICE PURSUANT TO SECTION  THIRTEEN  HUNDRED  NINETY-NINE-CC  OF
 THIS  ARTICLE,  through (a) a driver's license or non-driver identifica-
 tion 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, (b) a valid pass-
 port issued by the United States government or  the  government  of  any
 other  country, or (c) an identification card issued by the armed forces
 of the United States, indicating that the individual is at  least  twen-
 ty-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,  elec-
 tronic  cigarette,  vapor  product intended or reasonably expected to be
 used with or for the consumption of nicotine, or herbal cigarette or the
 distribution without charge of electronic cigarettes, or vapor  products
 intended  or  reasonably expected to be used with or for the consumption
 of nicotine to an individual.

 A. 10871                            3
 
   § 5. Subdivision 1 of section 1399-cc of  the  public  health  law  is
 amended by adding a new paragraph (f) to read as follows:
   (F) "BIOMETRIC IDENTITY VERIFICATION DEVICE" MEANS A COMMERCIAL DEVICE
 THAT INSTANTLY VERIFIES THE IDENTITY AND AGE OF A PERSON BY AN ELECTRON-
 IC  SCAN  OF  A BIOMETRIC OF SUCH PERSON, VIA A FINGERPRINT, IRIS IMAGE,
 FACIAL IMAGE, OR OTHER BIOMETRIC, OR ANY COMBINATION THEREOF,  WHICH  IS
 REFERENCED  AGAINST  ANY  RECORD  DESCRIBED  SUBDIVISION  THREE  OF THIS
 SECTION, WHERE (I) THE AUTHENTICITY OF THE RECORD WAS  PREVIOUSLY  VERI-
 FIED  BY  ELECTRONIC  AUTHENTICATION  PROCESS,  (II) THE IDENTITY OF THE
 RECORD HOLDER WAS PREVIOUSLY VERIFIED THROUGH A  COMMERCIALLY  AVAILABLE
 KNOWLEDGE  BASED ELECTRONIC AUTHENTICATION PROCESS AND (III) THE AUTHEN-
 TICATED RECORD  WAS  SECURELY  LINKED  TO  BIOMETRICS  CONTEMPORANEOUSLY
 COLLECTED FROM THE VERIFIED RECORD HOLDER.
   §  6.  Subdivision  3  of section 1399-cc of the public health law, as
 amended by chapter 100 of the laws  of  2019,  is  amended  to  read  as
 follows:
   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 iden-
 tification card issued by the armed forces of the United States, OR  (D)
 USE  OF  A  BIOMETRIC  IDENTITY VERIFICATION DEVICE, 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 tobac-
 co product, herbal cigarettes, liquid  nicotine,  shisha  or  electronic
 cigarettes to an individual under twenty-one years of age.
   §  7. Subdivisions 4, 5, and 6 of section 1399-cc of the public health
 law, as amended by chapter 542 of the laws of 2014, are amended to  read
 as follows:
   4.  (a)  Any  person  operating  a  place  of business wherein tobacco
 products, herbal cigarettes, liquid nicotine, shisha or electronic ciga-
 rettes are sold or offered for sale may perform a transaction scan as  a
 precondition  for  such purchases, OR USE A BIOMETRIC IDENTITY VERIFICA-
 TION DEVICE.
   (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, OR WHERE THE USE
 OF A BIOMETRIC IDENTITY VERIFICATION DEVICE INDICATES THAT THE PERSON IS
 UNDER THE AGE OF EIGHTEEN YEARS OF AGE, 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  THE
 LICENSEE,  OR  AGENT  OR  EMPLOYEE  OF A LICENSEE UNDER THIS CHAPTER HAD
 DETERMINED SUCH PERSON'S AGE BY MEANS OF A BIOMETRIC IDENTITY  VERIFICA-
 TION  DEVICE OR 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 prod-
 uct,  herbal  cigarettes  or liquid nicotine had been sold, delivered or

 A. 10871                            4
 
 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 poli-
 cy adopted and implemented by the seller to effectuate the provisions of
 this  chapter. Use of a transaction scan OR BIOMETRIC IDENTITY VERIFICA-
 TION DEVICE 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  OR  A
 BIOMETRIC  IDENTITY VERIFICATION DEVICE, and shall only use the informa-
 tion 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 informa-
 tion recorded OR OBTAINED during such a scan OR THROUGH  THE  USE  OF  A
 BIOMETRIC IDENTITY VERIFICATION DEVICE to any third person. Such prohib-
 ited  resale  or dissemination includes but is not limited to any adver-
 tising,  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 electron-
 ically or mechanically record and maintain only the information  from  a
 transaction  scan  OR  USE  OF  A BIOMETRIC IDENTITY VERIFICATION DEVICE
 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  commis-
 sioner and state commissioner of motor vehicles shall jointly promulgate
 any  regulations  necessary  to  govern the recording and maintenance of
 these records PRODUCED FROM A TRANSACTION SCAN 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.
   §  8.  This  act shall take effect on the ninetieth day after it shall
 have become a law. Effective immediately the addition, amendment  and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  and  completed
 on or before such effective date.