S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5983
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 4, 2021
                                ___________
 
 Introduced by 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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05629-02-1

 A. 5983                             2
 
   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
 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

 A. 5983                             3
 
 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.
   §  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-

 A. 5983                             4
 
 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
 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.