Section 1399-MM. Sale of gutka prohibited

1. No person shall knowingly sell
  or  provide  gutka  to  any other person under eighteen years of age. No
  other provision of law authorizing the sale of tobacco  products,  other
  than subdivision two of this section, shall authorize the sale of gutka.
  Any  person  who  violates  the  provisions of this subdivision shall be
  subject to a civil penalty of not more than five hundred dollars.
    2. (a) The provisions of subdivision one of  this  section  shall  not
  apply  to  a  tobacco  business,  as defined in section thirteen hundred
  ninety-nine-n of this chapter.
    (b) Any person operating a tobacco business wherein gutka is  sold  or
  offered  for  sale  is prohibited from selling such gutka 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 GUTKA 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.
    (c) Sales of gutka by a tobacco business shall  be  made  only  to  an
  individual  who  demonstrates,  through  a  driver's  license  or  other
  photographic identification  card  issued  by  a  government  entity  or
  educational  institution  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 to an
  individual under eighteen years of age.
    (d) (i) Any person operating a tobacco business wherein gutka is  sold
  or offered for sale may perform a transaction scan as a precondition for
  such purchases.
    (ii)   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.
    (iii)   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 gutka 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 tobacco business wherein gutka is 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.
    (e)  A  tobacco  business  or agent or employee of such business 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 paragraph
  (d) of this subdivision. No tobacco business or  agent  or  employee  of
  such  business  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 paragraph, 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 paragraph  shall
  be punishable by a civil penalty of not more than one thousand dollars.
    (f)  A  tobacco  business  or  agent  or employee of such business 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: (i) name,  (ii)  date  of
  birth,  (iii)  driver's license or non-driver identification number, and
  (iv) expiration date.
    (g) As used in this subdivision, "a device capable of deciphering  any
  electronically  readable  format",  "card holder" and "transaction scan"
  shall have the same meanings as are ascribed to such  terms  by  section
  thirteen hundred ninety-nine-cc of this article.