S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2621
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2023
                                ___________
 
 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  AND  IS  STORED  IN  A
 CENTRALIZED, HIGHLY SECURED, ENCRYPTED BIOMETRIC DATABASE.
   §  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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05790-01-3
 A. 2621                             2
 
              

   § 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
 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 (a) a 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, (b)
 a  valid  passport issued by the United States government or the govern-
 ment of any other country, [or] (c) an identification card issued by the
 armed forces of the United States, OR (D) THROUGH THE USE OF A BIOMETRIC
 IDENTITY VERIFICATION DEVICE PURSUANT TO SECTION THIRTEEN HUNDRED  NINE-
 TY-NINE-CC  OF  THIS ARTICLE, 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
 A. 2621                             3
 
 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.
   §  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 AND IS STORED  IN  A  CENTRAL-
 IZED, HIGHLY SECURED, ENCRYPTED BIOMETRIC DATABASE.
   §  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 TWENTY-ONE YEARS  OF  AGE,  the  attempted  transaction
 shall be denied.
 A. 2621                             4
 
   (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
 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.