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A06037 Summary:

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A06037 Floor Votes:

A06037 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6037--A
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 4, 2011
                                       ___________
 
        Introduced  by  M.  of  A.  BROOK-KRASNY,  P. RIVERA, JAFFEE, STEVENSON,
          BARRON, ORTIZ, CYMBROWITZ, N. RIVERA, COLTON -- Multi-Sponsored by  --
          M.  of  A.  ABBATE,  BURLING, CERETTO, CROUCH, DUPREY, FINCH, GOODELL,
          McKEVITT, McLAUGHLIN, MONTESANO, PHEFFER, SCHIMEL, WEISENBERG --  read
          once  and referred to the Committee on Health -- committee discharged,

          bill amended, ordered reprinted as amended  and  recommitted  to  said
          committee
 
        AN  ACT  to  amend the public health law, in relation to prohibiting the
          sale of hookahs, shisha and water pipes to minors
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.    Section  1399-aa of the public health law is amended by
     2  adding a new subdivision 12 to read as follows:
     3    12. "Shisha" means any product made  primarily  of  tobacco  or  other
     4  leaf,  or  any combination thereof, smoked or intended to be smoked in a
     5  hookah or water pipe.
     6    § 2.  Section 1399-cc of the public health law, as amended by  chapter
     7  508  of the laws of 2000, subdivision 3 as separately amended by chapter

     8  508 of the laws of 2000 and chapter 162 of the laws of 2002, subdivision
     9  7 as amended by chapter 13 of the laws of 2003, is amended  to  read  as
    10  follows:
    11    §  1399-cc. Sale of tobacco products, herbal cigarettes, shisha, roll-
    12  ing papers or [pipes] smoking paraphernalia to minors prohibited. 1.  As
    13  used in this section:
    14    (a)  "A  device  capable  of  deciphering  any electronically readable
    15  format" or "device" shall mean any commercial device or  combination  of
    16  devices  used at a point of sale or entry that is capable of reading the
    17  information encoded on the bar code or  magnetic  strip  of  a  driver's
    18  license  or  non-driver  identification card issued by the state commis-
    19  sioner of motor vehicles;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets

                              [ ] is old law to be omitted.
                                                                   LBD09492-02-1
        A. 6037--A                          2
 
     1    (b) "Card holder" means any person presenting a  driver's  license  or
     2  non-driver identification card to a licensee, or to the agent or employ-
     3  ee of such licensee under this chapter; [and]
     4    (c)  "Smoking paraphernalia" means any pipe, water pipe, hookah, roll-
     5  ing papers, vaporizer  or  any  other  device,  equipment  or  apparatus
     6  designed for the inhalation of tobacco; and
     7    (d)  "Transaction  scan"  means the process involving an automated bar
     8  code reader by which a licensee, or agent  or  employee  of  a  licensee
     9  under  this chapter reviews a driver's license or non-driver identifica-

    10  tion card presented as a precondition for  the  purchase  of  a  tobacco
    11  product  or  herbal  cigarettes  pursuant  to  subdivision three of this
    12  section;
    13    2. Any person operating a place of business wherein  tobacco  products
    14  [or],  herbal  cigarettes  or  shisha,  are  sold or offered for sale is
    15  prohibited from  selling  such  products,  herbal  cigarettes,  [rolling
    16  papers  or  pipes]  shisha or smoking paraphernalia to individuals under
    17  eighteen years of age, and shall post in a conspicuous place a sign upon
    18  which there shall be imprinted the following statement, "SALE  OF  CIGA-
    19  RETTES,  CIGARS,  CHEWING  TOBACCO,  POWDERED  TOBACCO,  SHISHA OR OTHER
    20  TOBACCO PRODUCTS, HERBAL CIGARETTES, ROLLING PAPERS OR  [PIPES]  SMOKING

    21  PARAPHERNALIA,  TO  PERSONS UNDER EIGHTEEN YEARS OF AGE IS PROHIBITED BY
    22  LAW."  Such sign shall be printed on a white  card  in  red  letters  at
    23  least one-half inch in height.
    24    3.  Sale of tobacco products [or], herbal cigarettes or shisha in such
    25  places, other than by a vending machine, shall be made only to an  indi-
    26  vidual  who  demonstrates,  through (a) a valid driver's license or non-
    27  driver's identification card issued by the commissioner of  motor  vehi-
    28  cles,  the federal government, any United States territory, commonwealth
    29  or possession, the District of Columbia, a state government  within  the
    30  United  States  or a provincial government of the dominion of Canada, or
    31  (b) a valid passport issued by the United States government or any other
    32  country, or (c) an identification card issued by the armed forces of the

    33  United States, indicating that the individual is at least eighteen years
    34  of age. Such identification need not be required of any  individual  who
    35  reasonably  appears  to  be at least twenty-five years of age, provided,
    36  however, that such appearance shall not  constitute  a  defense  in  any
    37  proceeding  alleging  the  sale  of a tobacco product [or], herbal ciga-
    38  rettes or shisha to an individual under eighteen years of age.
    39    4. (a) Any person  operating  a  place  of  business  wherein  tobacco
    40  products  [or], herbal cigarettes or shisha are sold or offered for sale
    41  may perform a transaction scan as a precondition for such purchases.
    42    (b) In any instance where the information  deciphered  by  the  trans-
    43  action  scan  fails  to  match  the  information printed on the driver's

    44  license or non-driver identification card, or if  the  transaction  scan
    45  indicates  that  the  information  is false or fraudulent, the attempted
    46  transaction shall be denied.
    47    (c) In any proceeding pursuant  to  section  thirteen  hundred-ninety-
    48  nine-ee  of  this  article, it shall be an affirmative defense that such
    49  person had produced a driver's license or non-driver identification card
    50  apparently issued by a governmental entity, successfully completed  that
    51  transaction  scan, and that the tobacco product or herbal cigarettes had
    52  been sold, delivered or given to such person in reasonable reliance upon
    53  such identification and transaction scan. In evaluating the  applicabil-
    54  ity of such affirmative defense the commissioner shall take into consid-
    55  eration  any  written  policy  adopted  and implemented by the seller to

    56  effectuate the provisions of this chapter. Use  of  a  transaction  scan
        A. 6037--A                          3
 
     1  shall not excuse any person operating a place of business wherein tobac-
     2  co  products [or], herbal cigarettes or shisha are sold, or the agent or
     3  employee of such person,  from  the  exercise  of  reasonable  diligence
     4  otherwise   required   by   this   chapter.  Notwithstanding  the  above
     5  provisions, any such affirmative defense shall not be applicable in  any
     6  civil or criminal proceeding, or in any other forum.
     7    5.  A  licensee or agent or employee of such licensee shall only use a
     8  device capable of deciphering any electronically  readable  format,  and
     9  shall  only  use the information recorded and maintained through the use
    10  of such devices, for the purposes contained in subdivision four of  this

    11  section.  No licensee or agent or employee of a licensee shall resell or
    12  disseminate the information recorded during such a  scan  to  any  third
    13  person.  Such  prohibited  resale  or  dissemination includes but is not
    14  limited  to  any  advertising,  marketing  or  promotional   activities.
    15  Notwithstanding  the  restrictions  imposed  by  this  subdivision, such
    16  records may be released pursuant to a court ordered subpoena or pursuant
    17  to any other statute that specifically authorizes the  release  of  such
    18  information. Each violation of this subdivision shall be punishable by a
    19  civil penalty of not more than one thousand dollars.
    20    6.  A  licensee  or agent or employee of such a licensee may electron-
    21  ically or mechanically record and maintain only the information  from  a
    22  transaction  scan necessary to effectuate this section. Such information

    23  shall be limited to the following: (a) name,  (b)  date  of  birth,  (c)
    24  driver's license or non-driver identification number, and (d) expiration
    25  date.  The  commissioner  and state commissioner of motor vehicles shall
    26  jointly promulgate any regulations necessary to govern the recording and
    27  maintenance of these records by  a  licensee  under  this  chapter.  The
    28  commissioner and the state liquor authority shall jointly promulgate any
    29  regulation  necessary to ensure quality control in the use of the trans-
    30  action scan devices under this chapter and article five of the alcoholic
    31  beverage control law.
    32    7. No person operating a place of business  wherein  tobacco  products
    33  [or],  herbal  cigarettes  or  shisha are sold or offered for sale shall
    34  sell, permit to be sold, offer for sale or display for sale any  tobacco

    35  product  [or],  herbal  cigarettes  or shisha in any manner, unless such
    36  products and cigarettes are stored for sale (a) behind a counter  in  an
    37  area  accessible  only  to  the  personnel of such business, or (b) in a
    38  locked container; provided, however, such restriction shall not apply to
    39  tobacco businesses, as defined in subdivision eight of section  thirteen
    40  hundred ninety-nine-aa of this article, and to places to which admission
    41  is restricted to persons eighteen years of age or older.
    42    §  3. This act shall take effect on the first of January next succeed-
    43  ing the date on which it shall have become a law.