§ 1399-CC — Sale of tobacco products, herbal cigarettes, liquid nicotine, shisha, rolling papers or smoking paraphernalia to minors prohibited

§ 1399-cc. Sale of tobacco products, herbal cigarettes, liquid\nnicotine, shisha, rolling papers or smoking paraphernalia to minors\nprohibited. 1. As used in this section:\n (a) "A device capable of deciphering any electronically readable\nformat" or "device" shall mean any commercial device or combination of\ndevices used at a point of sale or entry that is capable of reading the\ninformation encoded on the bar code or magnetic strip of a driver's\nlicense or non-driver identification card issued by the state\ncommissioner of motor vehicles;\n (b) "Card holder" means any person presenting a driver's license or\nnon-driver identification card to a licensee, or to the agent or\nemployee of such licensee under this chapter;\n (c) "Smoking paraphernalia" means any pipe, water pipe, hookah,\nrolling papers, vaporizer or any other device, equipment or apparatus\ndesigned for the inhalation of tobacco;\n (d) "Transaction scan" means the process involving an automated bar\ncode reader by which a licensee, or agent or employee of a licensee\nunder this chapter reviews a driver's license or non-driver\nidentification card presented as a precondition for the purchase of a\ntobacco product or herbal cigarettes pursuant to subdivision three of\nthis section; and\n (e) "Liquid nicotine", "electronic liquid" or "e-liquid" means a\nliquid composed of nicotine and other chemicals, and which is sold as a\nproduct that may be used in an electronic cigarette.\n 2. Any person operating a place of business wherein tobacco products,\nherbal cigarettes, liquid nicotine, shisha or electronic cigarettes, are\nsold or offered for sale is prohibited from selling such products,\nherbal cigarettes, liquid nicotine, shisha, electronic cigarettes or\nsmoking paraphernalia to individuals under twenty-one years of age, and\nshall post in a conspicuous place a sign upon which there shall be\nimprinted the following statement, "SALE OF CIGARETTES, CIGARS, CHEWING\nTOBACCO, POWDERED TOBACCO, SHISHA OR OTHER TOBACCO PRODUCTS, HERBAL\nCIGARETTES, LIQUID NICOTINE, ELECTRONIC CIGARETTES, ROLLING PAPERS OR\nSMOKING PARAPHERNALIA, TO PERSONS UNDER TWENTY-ONE YEARS OF AGE IS\nPROHIBITED BY LAW." Such sign shall be printed on a white card in red\nletters at least one-half inch in height.\n 3. Sale of tobacco products, herbal cigarettes, liquid nicotine,\nshisha or electronic cigarettes in such places, other than by a vending\nmachine, shall be made only to an individual who demonstrates, through\n(a) a valid driver's license or non-driver's identification card issued\nby the commissioner of motor vehicles, the federal government, any\nUnited States territory, commonwealth or possession, the District of\nColumbia, a state government within the United States or a provincial\ngovernment of the dominion of Canada, or (b) a valid passport issued by\nthe United States government or any other country, or (c) an\nidentification card issued by the armed forces of the United States,\nindicating that the individual is at least twenty-one years of age. Such\nidentification need not be required of any individual who reasonably\nappears to be at least twenty-five years of age, provided, however, that\nsuch appearance shall not constitute a defense in any proceeding\nalleging the sale of a tobacco product, herbal cigarettes, liquid\nnicotine, shisha or electronic cigarettes to an individual under\ntwenty-one years of age.\n 4. (a) Any person operating a place of business wherein tobacco\nproducts, herbal cigarettes, liquid nicotine, shisha or electronic\ncigarettes are sold or offered for sale may perform a transaction scan\nas a precondition for such purchases.\n (b) In any instance where the information deciphered by the\ntransaction scan fails to match the information printed on the driver's\nlicense or non-driver identification card, or if the transaction scan\nindicates that the information is false or fraudulent, the attempted\ntransaction shall be denied.\n (c) In any proceeding pursuant to section thirteen hundred\nninety-nine-ee of this article, it shall be an affirmative defense that\nsuch person had produced a driver's license or non-driver identification\ncard apparently issued by a governmental entity, successfully completed\nthat transaction scan, and that the tobacco product, herbal cigarettes\nor liquid nicotine had been sold, delivered or given to such person in\nreasonable reliance upon such identification and transaction scan. In\nevaluating the applicability of such affirmative defense the\ncommissioner shall take into consideration any written policy adopted\nand implemented by the seller to effectuate the provisions of this\nchapter. Use of a transaction scan shall not excuse any person operating\na place of business wherein tobacco products, herbal cigarettes, liquid\nnicotine, shisha or electronic cigarettes are sold, or the agent or\nemployee of such person, from the exercise of reasonable diligence\notherwise required by this chapter. Notwithstanding the above\nprovisions, any such affirmative defense shall not be applicable in any\ncivil or criminal proceeding, or in any other forum.\n 5. A licensee or agent or employee of such licensee shall only use a\ndevice capable of deciphering any electronically readable format, and\nshall only use the information recorded and maintained through the use\nof such devices, for the purposes contained in subdivision four of this\nsection. No licensee or agent or employee of a licensee shall resell or\ndisseminate the information recorded during such a scan to any third\nperson. Such prohibited resale or dissemination includes but is not\nlimited to any advertising, marketing or promotional activities.\nNotwithstanding the restrictions imposed by this subdivision, such\nrecords may be released pursuant to a court ordered subpoena or pursuant\nto any other statute that specifically authorizes the release of such\ninformation. Each violation of this subdivision shall be punishable by a\ncivil penalty of not more than one thousand dollars.\n 6. A licensee or agent or employee of such a licensee may\nelectronically or mechanically record and maintain only the information\nfrom a transaction scan necessary to effectuate this section. Such\ninformation shall be limited to the following: (a) name, (b) date of\nbirth, (c) driver's license or non-driver identification number, and (d)\nexpiration date. The commissioner and state commissioner of motor\nvehicles shall jointly promulgate any regulations necessary to govern\nthe recording and maintenance of these records by a licensee under this\nchapter. The commissioner and the state liquor authority shall jointly\npromulgate any regulation necessary to ensure quality control in the use\nof the transaction scan devices under this chapter and article five of\nthe alcoholic beverage control law.\n 7. No person operating a place of business wherein tobacco products,\nherbal cigarettes, liquid nicotine, shisha or electronic cigarettes are\nsold or offered for sale shall sell, permit to be sold, offer for sale\nor display for sale any tobacco product, herbal cigarettes, liquid\nnicotine, shisha or electronic cigarettes in any manner, unless such\nproducts and cigarettes are stored for sale (a) behind a counter in an\narea accessible only to the personnel of such business, or (b) in a\nlocked container; provided, however, such restriction shall not apply to\ntobacco businesses, as defined in subdivision eight of section thirteen\nhundred ninety-nine-aa of this article, and to places to which admission\nis restricted to persons twenty-one years of age or older.\n