Extends dram shop liability to cover persons who sell false id to persons under 21 years of age

Summary of provisions

Adds a new paragraph (b) to section 11-100(1) of the General Obligations Law providing that any third party injured as the result of the intoxication or impairment of ability of any person under the age of 21 years shall have a right of action against any person or entity that produced and directly or indirectly sold a minor false identification which was used to obtain or procure alcoholic beverages that led to the intoxication of the individual causing the injury. The former paragraph 11-100(1) has been re-identified as paragraph 11-100 (1)(a).

Under proposed section 11-100 (1)(b), specific knowledge by the producer and seller of the fake identification that the minor procured alcoholic beverages with the identification is not necessary, as it is reasonably expected that when an identification is sold misrepresenting a minor's age, it could be used for illegal purposes. Case law has interpreted previous application of section 11-100 to require that the defendant had awareness of and authorized the consumption of alcohol by minors. The new section 11-100 (1)(a) will still be applied in the same way. However, new section 11-100 (1)(b) clarifies that there is no knowledge requirement.

Justification

Despite significant progress over the past 20 years, underage drinking is a complex problem that persists in communities across the nation. The battle to restrict access to alcohol by those under the legal purchase age must be fought on many fronts, including holding those who assist knowingly AND presumptively in the procurement of alcoholic beverages to minors civilly liable.

The Dram Shop Act provides a cause of action against any person who unlawfully sells or assists in procuring alcohol for an intoxicated person or a person under the age of twenty-one. NY Gen. Oblig. Law sections 11-100 and 11-101. The sale of alcohol to any person visibly intoxicated or any person under twenty-one is prohibited, as is knowingly causing the intoxication of a person under twenty-one by furnishing or assisting in the procurement of the alcoholic beverage. Forty-two states and the District of Columbia have Dram Shop laws. The earliest dram shop laws date from the 19th century temperance movement. New York's was adopted in 1921 as section 16 of the Civil Rights Law, and its substance was transferred to section 11-101 of the General Obligations Law in 1964.

Under New York's General Obligations Law 11-100, one of the Dram Shop laws, if someone is injured by an intoxicated minor, the injured victim has a right to bring a lawsuit against the person who caused or contributed to the intoxication of the minor by unlawfully selling to, or assisting in the procuring of liquor for, the minor. In order to be held liable, the procurer of the alcohol must have known, or had reasonable cause to believe, that the person he was providing the

alcoholic drink to was under the age of 21. Under the law, even an under-aged person who provides alcohol to another under-aged person can be held liable to the victims.

In these cases, the seller or social provider of the actual alcohol to the minor can be found liable for any injuries to a third party caused by that intoxicated minor. But what about the instance where the alcohol was obtained via fake identification? In these cases, the producer and seller of the fake identification plays an indispensable role in making the alcohol available to the under-aged person.

It is only reasonable that the state place responsibility for the damages caused by underage intoxicants on those who not only profited from the sale of the alcohol, as current laws do, but on those who profited from the sale of the identification that enabled them to buy the alcohol.

Until now, Courts have refused to hold the producer and/or seller of the fake identification liable under Dram Shop laws. In Etu v. Cumberland Farms, 148 A.D. 2d 821 (1989), the Third Department held that the Spencer Gifts retail chain was not responsible when a 15 year-old boy purchased a do-it-yourself fake ID kit and used the ID he made to purchase beer. After becoming intoxicated, he stole a car and died in a one-car accident. Plaintiffs argued that it was reasonably foreseeable to Spencer Gifts when they placed this simulated driver's license into the stream of commerce that it would be used by minors to misrepresent their age to purchase alcohol, but the Court ruled that the company's behavior did not meet the state's narrow definition of unlawfully furnishing or assisting in procuring alcohol under the Dram Shop laws.

As previously discussed, the proposed legislation would amend section 11-100 to provide a right of action by an injured party against any person selling false identification to a minor which is subsequently used to obtain alcohol. In doing so, this bill would further the goals of existing Dram Shop laws that are intended to protect the general public from the hazards of irresponsibly furnishing alcohol to minors and intoxicated patrons.

Legislative history

2008 - S.6528 - Referred to Judiciary

Fiscal implications

None to the state.

Effective date

This act shall take effect immediately.