Section 1399-CC. Sale of tobacco products, herbal cigarettes, rolling papers or pipes to minors prohibited

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 bar code or  magnetic  strip  of  a  driver's
  license   or   non-driver   identification  card  issued  by  the  state
  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  an  automated  bar
  code  reader  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 a
  tobacco product or herbal cigarettes pursuant to  subdivision  three  of
  this section;
    2.  Any  person operating a place of business wherein tobacco products
  or herbal cigarettes are sold or offered for  sale  is  prohibited  from
  selling  such  products,  herbal  cigarettes, rolling papers or pipes to
  individuals under eighteen years of age, and shall post in a conspicuous
  place  a  sign  upon  which  there  shall  be  imprinted  the  following
  statement,  "SALE  OF  CIGARETTES,  CIGARS,  CHEWING  TOBACCO,  POWDERED
  TOBACCO, OR OTHER TOBACCO PRODUCTS, HERBAL CIGARETTES, ROLLING PAPERS OR
  PIPES, TO PERSONS UNDER EIGHTEEN 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.
    3. Sale of tobacco products or herbal cigarettes in such places, other
  than by a vending machine, shall be  made  only  to  an  individual  who
  demonstrates,  through  (a)  a  valid  driver's  license or non-driver's
  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
  (b) a valid passport issued by the United States government or any other
  country, or (c) an identification card issued by the armed forces of the
  United States, indicating that the individual is at least eighteen 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 or herbal cigarettes
  to an individual under eighteen years of age.
    4. (a) Any person  operating  a  place  of  business  wherein  tobacco
  products or herbal cigarettes are sold or offered for sale may perform a
  transaction scan as a precondition for such purchases.
    (b)   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.
    (c)    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 tobacco
  product or herbal cigarettes 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  place  of  business wherein tobacco products or herbal cigarettes are
  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.
    5. A licensee or agent or employee of such licensee 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 subdivision four of this
  section. No licensee or agent or employee of a licensee 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  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.
    6.  A  licensee  or  agent  or  employee  of  such  a   licensee   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: (a) name, (b) date of
  birth, (c) driver's license or non-driver identification number, and (d)
  expiration date.  The  commissioner  and  state  commissioner  of  motor
  vehicles  shall  jointly  promulgate any regulations necessary to govern
  the recording and maintenance of these records by a licensee under  this
  chapter.  The  commissioner and the state liquor authority shall jointly
  promulgate any regulation necessary to ensure quality control in the use
  of the transaction scan devices under this chapter and article  five  of
  the alcoholic beverage control law.
    7. No person operating a place of business wherein tobacco products or
  herbal  cigarettes are sold or offered for sale shall sell, permit to be
  sold, offer for sale or display for sale any tobacco product  or  herbal
  cigarettes in any manner, unless such products and cigarettes are stored
  for  sale  (a)  behind  a  counter  in  an  area  accessible only to the
  personnel of such business, or (b)  in  a  locked  container;  provided,
  however,  such  restriction  shall  not  apply to tobacco businesses, as
  defined in subdivision eight of section thirteen hundred  ninety-nine-aa
  of  this  article,  and  to  places  to which admission is restricted to
  persons eighteen years of age or older.