File No. 705

House of Representatives, May 9, 2001

The Committee on Judiciary reported through REP. LAWLOR of the 99th Dist., Chairperson of the Committee on the part of the House, that the substitute bill ought to pass.

AN ACT AUTHORIZING THE USE OF TRANSACTION SCAN DEVICES BY SELLERS OF ALCOHOLIC LIQUOR AND TOBACCO.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 30-86 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) As used in this section:

(1) "Cardholder" means any person who presents a driver's license or an identity card to a permittee or permittee's agent or employee, to purchase or receive alcoholic liquor from such permittee or permittee's agent or employee;

(2) "Identity card" means an identification card issued in accordance with the provisions of section 1-1h;

(3) "Transaction scan" means the process by which a permittee or permittee's agent or employee checks, by means of a transaction scan device, the validity of a driver's license or an identity card; and

(4) "Transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver's license or an identity card.

(b) Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113. Any person who sells, ships, delivers or gives any such liquors to such minor, by any means, including, but not limited to, the Internet or any other on-line computer network, except on the order of a practicing physician, shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen months, or both. The provisions of this section shall not apply (1) to a sale, shipment or delivery made to a person over age eighteen who is an employee or permit holder under section 30-90a and where such sale, shipment or delivery is made in the course of such person's employment or business, (2) to a sale, shipment or delivery made in good faith to a minor who practices any deceit in the procurement of an identity card issued in accordance with the provisions of section 1-1h, who uses or exhibits any such identity card belonging to any other person or who uses or exhibits any such identity card that has been altered or tampered with in any way, or (3) to a shipment or delivery made to a minor by a parent, guardian or spouse of the minor, provided such parent, guardian or spouse has attained the age of twenty-one and provided such minor possesses such alcoholic liquor while accompanied by such parent, guardian or spouse.

(c) (1) A permittee or permittee's agent or employee may perform a transaction scan to check the validity of a driver's license or identity card presented by a cardholder as a condition for selling, giving away or otherwise distributing alcoholic liquor to the cardholder.

(2) If the information deciphered by the transaction scan performed under subdivision (1) of this subsection fails to match the information printed on the driver's license or identity card presented by the cardholder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the permittee nor any permittee's agent or employee shall sell, give away or otherwise distribute any alcoholic liquor to the cardholder.

(3) Subdivision (1) of this subsection does not preclude a permittee or permittee's agent or employee from using a transaction scan device to check the validity of a document presented as identification other than a driver's license or an identity card, if the document includes a bar code or magnetic strip that may be scanned by the device, as a condition for selling, giving away or otherwise distributing alcoholic liquor to the person presenting the document.

(d) (1) No permittee or permittee's agent or employee shall electronically or mechanically record or maintain any information derived from a transaction scan, except the following: (A) The name and date of birth of the person listed on the driver's license or identity card presented by a cardholder; (B) the expiration date and identification number of the driver's license or identity card presented by a cardholder.

(2) No permittee or permittee's agent or employee shall use a transaction scan device for a purpose other than the purposes specified in subsection (c) of this section or subsection (d) of section 53-344, as amended by this act.

(3) No permittee or permittee's agent or employee shall sell or otherwise disseminate the information derived from a transaction scan to any third party for any purpose, including, but not limited to, any marketing, advertising or promotional activities, except that a permittee or permittee's agent or employee may release that information pursuant to a court order.

(4) Nothing in subsection (c) of this section or this subsection relieves a permittee or permittee's agent or employee of any responsibility to comply with any other applicable state or federal laws or rules governing the sale, giving away or other distribution of alcoholic liquor.

(5) Any person who violates this subsection shall be subject to a civil penalty of not more than one thousand dollars.

(e) (1) In any prosecution of a permittee or permittee's agent or employee for selling alcoholic liquor to a minor in violation of subsection (b) of this section, it shall be an affirmative defense that all of the following occurred: (A) A cardholder attempting to purchase or receive alcoholic liquor presented a driver's license or an identity card; (B) a transaction scan of the driver's license or identity card that the cardholder presented indicated that the license or card was valid; and (C) the alcoholic liquor was sold, given away or otherwise distributed to the cardholder in reasonable reliance upon the identification presented and the completed transaction scan.

(2) In determining whether a permittee or permittee's agent or employee has proven the affirmative defense provided by subdivision (1) of this subsection, the trier of fact in such prosecution shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a permittee or permittee's agent or employee to exercise reasonable diligence and that the use of a transaction scan device does not excuse a permittee or permittee's agent or employee from exercising such reasonable diligence to determine the following: (A) Whether a person to whom the permittee or permittee's agent or employee sells, gives away or otherwise distributes alcoholic liquor is twenty-one years of age or older; and (B) whether the description and picture appearing on the driver's license or identity card presented by a cardholder is that of the cardholder.

Sec. 2. Section 53-344 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) As used in this section:

(1) "Cardholder" means any person who presents a driver's license or an identity card to a seller or seller's agent or employee, to purchase or receive tobacco from such seller or seller's agent or employee;

(2) "Identity card" means an identification card issued in accordance with the provisions of section 1-1h;

(3) "Transaction scan" means the process by which a seller or seller's agent or employee checks, by means of a transaction scan device, the validity of a driver's license or an identity card; and

(4) "Transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver's license or an identity card.

[(a) ] (b) Any person who sells, gives or delivers to any minor under eighteen years of age tobacco, unless the minor is delivering or accepting delivery in [his] such person's capacity as an employee, in any form shall be fined not more than two hundred dollars for the first offense, not more than three hundred fifty dollars for a second offense within an eighteen-month period and not more than five hundred dollars for each subsequent offense within an eighteen-month period.

[(b) ] (c) Any person under eighteen years of age who purchases or misrepresents [his] such person's age to purchase tobacco in any form shall be fined not more than fifty dollars for the first offense and not less than fifty dollars nor more than one hundred dollars for each subsequent offense.

(d) (1) A seller or seller's agent or employee may perform a transaction scan to check the validity of a driver's license or identity card presented by a cardholder as a condition for selling, giving away or otherwise distributing tobacco to the cardholder.

(2) If the information deciphered by the transaction scan performed under subdivision (1) of this subsection fails to match the information printed on the driver's license or identity card presented by the cardholder, or if the transaction scan indicates that the information so printed is false or fraudulent, neither the seller nor any seller's agent or employee shall sell, give away or otherwise distribute any tobacco to the cardholder.

(3) Subdivision (1) of this subsection does not preclude a seller or seller's agent or employee from using a transaction scan device to check the validity of a document other than a driver's license or an identity card, if the document includes a bar code or magnetic strip that may be scanned by the device, as a condition for selling, giving away or otherwise distributing tobacco to the person presenting the document.

(e) (1) No seller or seller's agent or employee shall electronically or mechanically record or maintain any information derived from a transaction scan, except the following: (A) The name and date of birth of the person listed on the driver's license or identity card presented by a cardholder; (B) the expiration date and identification number of the driver's license or identity card presented by a cardholder.

(2) No seller or seller's agent or employee shall use a transaction scan device for a purpose other than the purposes specified in subsection (d) of this section or subsection (c) of section 30-86, as amended by this act.

(3) No seller or seller's agent or employee shall sell or otherwise disseminate the information derived from a transaction scan to any third party, including, but not limited to, selling or otherwise disseminating that information for any marketing, advertising or promotional activities, but a seller or seller's agent or employee may release that information pursuant to a court order.

(4) Nothing in subsection (d) of this section or this subsection relieves a seller or seller's agent or employee of any responsibility to comply with any other applicable state or federal laws or rules governing the sale, giving away or other distribution of tobacco.

(5) Any person who violates this subsection shall be subject to a civil penalty of not more than one thousand dollars.

(f) (1) In any prosecution of a seller or seller's agent or employee for a violation of subsection (b) of this section, it shall be an affirmative defense that all of the following occurred: (A) A cardholder attempting to purchase or receive tobacco presented a driver's license or an identity card; (B) a transaction scan of the driver's license or identity card that the cardholder presented indicated that the license or card was valid; and (C) the tobacco was sold, given away or otherwise distributed to the cardholder in reasonable reliance upon the identification presented and the completed transaction scan.

(2) In determining whether a seller or seller's agent or employee has proven the affirmative defense provided by subdivision (1) of this section, the trier of fact in such prosecution shall consider that reasonable reliance upon the identification presented and the completed transaction scan may require a seller or seller's agent or employee to exercise reasonable diligence and that the use of a transaction scan device does not excuse a seller or seller's agent or employee from exercising such reasonable diligence to determine the following: (A) Whether a person to whom the seller or seller's agent or employee sells, gives away or otherwise distributes tobacco is eighteen years of age or older; and (B) whether the description and picture appearing on the driver's license or identity card presented by a cardholder is that of the cardholder.

The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for the purpose of information, summarization, and explanation, and do not represent the intent of the General Assembly or either House thereof for any purpose:

OFA Fiscal Note

Explanation

State Impact:

The bill permits alcohol and tobacco retailers to use a transaction scanning device to verify the age of a customer by reading the magnetic strip or bar code on a driver’s license or identity card, which has no fiscal impact on the state. The bill forbids the sale or distribution of information derived from scanning the cards to third parties. The bill subjects violators to a civil penalty of $1, 000. This may result in a minimal revenue gain, the extent of which cannot be determined as it is dependent on the number of violations that occur.

OLR AMENDED BILL ANALYSIS

sHB 5585

AN ACT AUTHORIZING THE USE OF TRANSACTION SCAN DEVICES BY SELLERS OF ALCOHOLIC LIQUOR AND TOBACCO.

SUMMARY:

This bill specifically permits alcohol and tobacco retailers to use a transaction scanning device to verify the age of a customer by reading the magnetic strip or bar code on a driver’s license or Department of Motor Vehicle (DMV) -issued identity card. It provides the retailers with an affirmative defense if they sell alcohol or tobacco in reliance on the scan’s validity, but prohibits the sale if the information printed on the card is false or fraudulent, or if it does not match the scan results. The bill does not preclude the retailer, as a condition of the sale, from scanning other documents that have a scannable magnetic strip or bar code. But scanning these documents does not constitute an affirmative defense.

The bill restricts how the retailers can use the scan device, restricts the information they can record, and forbids selling or distributing information derived from the scan to third parties. It also specifies that merchants must still comply with other applicable state and federal alcohol and tobacco laws. Violators can be subject to a civil fine of up to $1, 000.

EFFECTIVE DATE: October 1, 2001

TRANSACTION SCAN DEVICE

Under the bill, a transaction scan device is any commercial device or combination of devices used at a point of sale that can decipher in electronically readable format information encoded on the magnetic strip or bar code of a driver’s license or identity card.

AFFIRMATIVE DEFENSE

Alcoholic liquor permittees, tobacco sellers, and their agents or employees may not be found guilty of selling to a minor if they prove that (1) a cardholder presented a driver’s license or DMV-identity card in attempting to buy the liquor or tobacco, (2) their scan of the card indicated it was valid, and (3) the liquor or tobacco was sold in reasonable reliance on the identification and the validity of the scan.

In determining whether a permittee, tobacco seller, agent, or employee has proven an affirmative defense, a court must consider that the use of a scan does not excuse a permittee or seller from exercising reasonable diligence to determine (1) if the customer is 21 years old or older in the case of alcohol or 18 years old or older in the case of tobacco, and (2) whether the description and picture on the license or card is that of the cardholder.

PURPOSE FOR WHICH SCAN MAY BE USED

The bill forbids permittees, tobacco sellers, or their agents or employees from using a transaction scan device for any purpose other than verifying a customer’s age and identity. It prohibits them from recording any information from a driver’s license or identity card other than (1) the name and date of birth of the person listed on the license or card and (2) the license or card expiration date and identification number. The bill bars permittees, tobacco sellers, or their agents or employees from selling or distributing information derived from a transaction scan to any third party for such purposes as marketing, advertising, or promotion, but allows them to release it under a court order.

BACKGROUND

Sale to Minors

Purchasers of alcoholic liquor, wine, or beer must be 21 years old. Purchasers of tobacco products must be 18 years old.

Permittees or their agents who sell alcohol to minors may be fined up to $1, 000 or sentenced to one year in prison, or both, for each offense. Any person who sells tobacco to a minor may be fined up to $200 for the first offense, up to $350 for a second offense within an 18-month period, and up to $500 for each subsequent offense within 18 months.

LEGISLATIVE HISTORY

The House referred the bill (File 253) to the Judiciary Committee on April 24. The committee reported it favorably on April 25 after replacing language stating that permittees, tobacco sellers, or their agents or employees may not be found guilty of selling to minors if they relied on the scan’s validity with language stating that such reliance provides them with an affirmative defense.

COMMITTEE ACTION

General Law Committee

Joint Favorable Substitute

Judiciary Committee

Joint Favorable Substitute