Extends dram shop liability to cover persons who sell false forms of identification to persons under 21 years of age who cause injury or damages while intoxicated

Summary of specific provisions

Section 1 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 or sold more than ten false identifications to minors which were used to obtain or procure alcoholic beverages that led to the intoxication of the individual causing the injury.

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.

Section 2 creates an affirmative defense for a seller of an identification card which stated an age over twenty-one who has scanned and relied upon an apparent government identification card which stated that the recipient was twenty-one or older.

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. 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.

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.

It is only reasonable that the state extend responsibility for the damages caused by underage intoxicants on those who profited from the sale of the identification that enabled them to buy the alcohol. 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. 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. 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.

The proposed legislation would amend section 11-100 to provide a right of action by an injured party against any person selling more than ten false identification to minors which are subsequently used to obtain alcohol. As the purveyors of false identifications are less proximate to the incident, the ten identification threshold will ensure that only those who clearly know of their wrong actions and have a high probability of creating injury will be liable.

It also creates an affirmative defense for the sellers who honestly believe that the purchaser is over the age of twenty-one by relying upon and scanning a government-issued photo identification. This narrows the scope of liability and further ensures that the law is targeted to those who know they are selling to minors who intend to act unlawfully.

Prior legislative history

2010 - S.1871 - Referred to Judiciary 2008 - S.6528 - Referred to Judiciary

Fiscal implications

None to the State.

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become a law.