Affirmative Defense for Alcohol Sales in NY to a Minor when using an ID Scanner.

NY state Alcohol Beverage Control law providing affirmative defense protection to merchants using an ID Scanner when selling to a minor.

In the section of NY ABC law provided below, section 7 provides merchants with an affirmative defense when properly using an ID Scanner during the sale of alcohol to a minor.  An ID Scanner reads the data stored on the magnetic stripe and/or 2D barcode of an ID, calculates the age, warns if under age and then records transaction data which is how a merchant can prove an ID Scanner was used during the sale of alcohol.  The most common form of ID in the hands of a minor is a borrowed ID.   If a merchant inadvertently sells to a minor who provides his/her older sibling’s/friend’s drivers license and the photo looks like the person presenting the ID, then with the transaction record stored in an ID Scanner, a merchant would be able to claim an Affirmative Defense.  Without an ID Scanner, the merchant would probably be found guilty of serving a minor and risk loosing their liquor license.   So in states like NY which offer the affirmative defense protection, it really makes sense to invest in the protection an ID Scanner provides.

Its important to note that using a transaction scan device or ID Scanner 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.  This means a merchant must still ensure the name printed on the license matches the name displayed on the ID Checker, the photo on the ID matches the person presenting the ID and the drivers licenses has not be obviously tampered.

Below is the NY state ABC law related to ID Scanners.   Note: The state defines an ID Scanner or ID Checker in section 65-b(a) as “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;”

ID Scanner perfect for Liquor and C-stores

    §  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 thirty

  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  thirty 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.

(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.

Note: The state defines an ID Scanner or ID Checker as “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;”

So if your a merchant, don’t wait for a ticket to invest in an ID Scanner!