NY Alcoh Bev Ctrl L § 65-B (2021)
2021 New York Laws ABC - Alcoholic Beverage Control Article 5 - Special Provisions Relating to Liquor 65-B - Offense for One Under Age of Twenty-One Years to Purchase or Attempt to Purchase an Alcoholic Beverage Through Fraudulent Means.

§  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 electronically readable format" or "device" shall  mean  any  commercial device  or  combination of devices used at a point of sale or entry that is capable 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 employee 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 alcoholic  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 driver's  license  or  non-driver  identification  card  issued   by   a governmental  entity,  such  licensee  or  agent or employee thereof may perform a transaction  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 deciphering 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 community 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 sixty  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 proximity 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  ninety 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.  (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 county 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 writing  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 license, in accordance with the following and for the following periods, 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 subdivision 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, delivered  or  given  to  such  person  in reasonable reliance upon such identification 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 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  from  a transaction  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 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.