§ 1399-mm. Sale of gutka prohibited. 1. No person shall knowingly
sell or provide gutka to any other person under twenty-one years of age.
No other provision of law authorizing the sale of tobacco products,
other than subdivision two of this section, shall authorize the sale of
gutka. Any person who violates the provisions of this subdivision shall
be subject to a civil penalty of not more than five hundred dollars.

2. (a) The provisions of subdivision one of this section shall not
apply to a tobacco business, as defined in section thirteen hundred
ninety-nine-n of this chapter.

(b) Any person operating a tobacco business wherein gutka is sold or
offered for sale is prohibited from selling such gutka to individuals
under twenty-one years of age, and shall post in a conspicuous place a
sign upon which there shall be imprinted the following statement, "SALE
OF GUTKA TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW."
Such sign shall be printed on a white card in red letters at least
one-half inch in height.

(c) Sales of gutka by a tobacco business shall be made only to an
individual who demonstrates, through a driver's license or other
photographic identification card issued by a government entity or
educational institution 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 tobacco product to an
individual under twenty-one years of age.

(d) (i) Any person operating a tobacco business wherein gutka is sold
or offered for sale may perform a transaction scan as a precondition for
such purchases.

(ii) In any instance where the information deciphered by the
transaction 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, the attempted
transaction shall be denied.

(iii) In any proceeding pursuant to section thirteen hundred
ninety-nine-ee 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
that transaction scan, and that the gutka 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
policy adopted and implemented by the seller to effectuate the
provisions of this chapter. Use of a transaction scan shall not excuse
any person operating a tobacco business wherein gutka is 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.

(e) A tobacco business or agent or employee of such business shall
only use a device capable of deciphering any electronically readable
format, and shall only use the information recorded and maintained
through the use of such devices, for the purposes contained in paragraph
(d) of this subdivision. No tobacco business or agent or employee of
such business shall resell or disseminate the information recorded
during such a 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 paragraph, 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 paragraph shall
be punishable by a civil penalty of not more than one thousand dollars.

(f) A tobacco business or agent or employee of such business may
electronically or mechanically record and maintain only the information
from a transaction scan necessary to effectuate 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.

(g) As used in this subdivision, "a device capable of deciphering any
electronically readable format", "card holder" and "transaction scan"
shall have the same meanings as are ascribed to such terms by section
thirteen hundred ninety-nine-cc of this article.