West Virginia ID Scanning Laws & Regulations
Can you scan IDs in West Virginia?
West Virginia law regulates a business’s ability to scan IDs in the context of selling restricted goods; otherwise, there is no law generally governing a business’s ability to scan IDs.
There are some instances in which merchants are required to record information related to identity, such as sale of controlled substances. ID scanning can improve the ease and accuracy of record keeping in these scenarios.
West Virginia ID Scanning Laws Overview
In the absence of any statute expressly regulating a business’s ability to scan IDs and to retain information obtained from a scan in general, subject to applicable privacy laws, businesses are likely allowed to scan IDs and to retain information obtained from scans.
In the context of selling “alcoholic beverages, wine, and non-intoxicating beer,” West Virginia law provides that (a) no scanner can be used to collect personal information from a driver’s license of any purchaser, including driver’s license number, social security number, or other descriptive information, other than the age, and (b) the Alcohol Beverage Control Commissioner may establish standards for using scanners. However, the Commissioner does not appear to have established such standards to date.
Does West Virginia offer affirmative defense for ID scanning?
Yes.
West Virginia Code Section 60-2-22 – Authority to utilize scanner technology in sales; authority to execute contracts relating thereto
a) The commissioner may, pursuant to section eleven of this article, authorize and establish standards for the use of scanner technology for the verification of age of purchasers of alcoholic beverages and wine as provided in article eight of this chapter, and nonintoxicating beer as provided for in article sixteen, chapter eleven of this code. Any scanner technology may not be used for the collection of personal identifiable information of any purchaser, which includes, but is limited to, drivers license number, social security number or other descriptive information contained on the license, other than the age of the purchaser.
(b) In addition to the commissioner’s powers set forth in section eleven of this article, the commissioner may sign and execute in the name of the office of alcohol beverage control commissioner one or more contracts or agreements pertaining to the sale or licensing and promotion of proprietary scanner technology by the commissioner, or his or her designated contractual partner, to any interested person, upon terms the commissioner believes to be in the best interests of this state, and to amend, extend or terminate any contract or agreement: Provided, That all contracts are subject to the review process contained in section thirteen, article three, chapter five-a of this chapter.
(c) “Scanner technology” includes any device that uses technology intended to control the access of minors to alcohol and tobacco products and which is capable of:(1) Capturing the information from a bar code or magnetic strip on a driver’s license or identification card issued by the division of motor vehicles;(2) Producing a declaration of age in print form and storing a record of the event in memory;(3) Producing an audible, visual and printed result;(4) Reporting a history of the events, including the ability to transfer the data for archiving and database development purposes; and(5) Storing at least one thousand events at any time before data is transferred.
(d) Moneys derived from the sale, licensing and promotion of the proprietary scanner technology shall be deposited in a special account in the state treasury to be known as the “Scanner Technology Fund.” Expenditures from the fund shall be for the maintenance and development of the proprietary scanner technology described in this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand four, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.
West Virginia Statute §60-3A-25a. Mandatory verification of age of persons purchasing alcohol.
(a) A licensee who:
(1) Has installed a transaction scan device in its licensed premises; and
(2) Can demonstrate that it requires each employee, servant, or agent to verify the age of any individual to whom liquor is sold, furnished, or given away by the use of the transaction device may not be subject to: (A) Any criminal penalties whatsoever; (B) any administrative penalties from the commissioner; or (C) any civil liability whatsoever for the improper sale, furnishing or giving away of liquor to an individual who is less than twenty-one years of age by one of his or her employees, servants or agents. Any agent, servant or employee who has improperly sold, furnished or given away liquor to an individual who is less than twenty-one years of age is subject to the criminal penalties of subsection (b) of this section. Any agent, servant, or employee, who has improperly sold, furnished or given away liquor to an individual less than twenty-one years of age, is subject to termination from employment, and the employer shall have no civil liability for the termination.
(b) For purposes of this subsection, a licensee can demonstrate that it requires each employee, servant or agent to verify the age of any individual to whom liquor is sold by providing evidence:
(1) That it has developed a written policy which requires each employee, servant or agent to verify the age of each individual to whom liquor will be sold, furnished or given away;
(2) That it has communicated this policy to each employee, servant or agent; and
(3) That it monitors the actions of its employees, servants or agents regarding the sale, furnishing or giving away of liquor and that it has taken corrective action for any discovered noncompliance with this policy.
(c) “Transaction scan” means the process by which a person checks, by means of a transaction scan device, the age and identity of the cardholder, and “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 enclosed on the magnetic strip or bar code of a driver’s license or other governmental identity card.
West Virginia Statute §11-16-18. Unlawful acts of licensees; criminal penalties.
(c) (1) A Class B licensee that:
(A) Has installed a transaction scan device on its licensed premises; and
(B) Can demonstrate that it requires each employee, servant or agent to verify the age of any individual to whom nonintoxicating beer is sold, furnished or given away by the use of the transaction device may not be subject to: (i) Any criminal penalties whatsoever, including those set forth in subsection (b) of this section; (ii) any administrative penalties from the commissioner; or (iii) any civil liability whatsoever for the improper sale, furnishing or giving away of nonintoxicating beer to an individual who is less than twenty-one years of age by one of his or her employees, servants or agents. Any agent, servant or employee who has improperly sold, furnished or given away nonintoxicating beer to an individual less than twenty-one years of age is subject to the criminal penalties of subsection (b) of this section. Any agent, servant or employee who has improperly sold, furnished or given away nonintoxicating beer to an individual less than twenty-one years of age is subject to termination from employment, and the employer shall have no civil liability for the termination.
West Virginia Code. §60A-9-4a. Verification of identity.
Prior to releasing a Schedule II, III, or IV controlled substance sold at retail, a pharmacist or pharmacy shall verify the full legal name, address and birth date of the person picking up the controlled substance dispensed by requiring the presentation of a valid government-issued photo identification card. This information shall be reported in accordance with the provisions of this article.
