Alcoholic Beverage Control - Special Provisions Relating to Liquor - Offense for one under age of twenty-one years to purchase or attempt to purchase an alcoholic beverage through fraudulent means


Published: 2014-09-22

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§ 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.