Bill Text: MS HB777 | 2014 | Regular Session | Introduced
Bill Title: Contraband tobacco; modify procedure for confiscation, forfeiture and disposal of.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2014-02-04 - Died In Committee [HB777 Detail]
Download: Mississippi-2014-HB777-Introduced.html
MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Judiciary B
By: Representative Smith (39th)
House Bill 777
AN ACT TO AMEND SECTIONS 27-69-53, 27-69-55 AND 27-69-59, MISSISSIPPI CODE OF 1972, TO MODIFY THE PROCEDURE FOR FORFEITURE AND DISPOSAL OF CONTRABAND TOBACCO; TO PROVIDE THE PROCEDURE FOR THE SALE OF TOBACCO THAT IS FORFEITED; TO PROVIDE FOR THE PAYMENT OF TAXES BY THE PURCHASER OF SUCH TOBACCO; TO AUTHORIZE THE DESTRUCTION OF FORFEITED CONTRABAND TOBACCO IF IT IS UNABLE TO BE SOLD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 27-69-53, Mississippi Code of 1972, is amended as follows:
27-69-53. Any cigarettes
found at any point within this state, in the possession of a dealer or any
person for a period of time longer than specified by Section 27-69-27 and not
having affixed to the package, the stamps as required, and any tobacco subject
to the tax found in the possession of any wholesaler, distributor or dealer
required by this chapter to obtain a permit, who has not procured a permit, or
whose permit has been revoked and not reinstated, are hereby declared to be
contraband goods, and * * * may be seized by the commissioner, or his agents, or employees,
or by any peace officer of this state, when directed by the commissioner so to
do, without a warrant, and the * * * goods shall be * * * disposed of as required by this chapter. If sold,
the proceeds of sale for any goods sold shall be paid to the State Treasurer by
the commissioner as are other funds collected * * *; however, the cost of
confiscation and sale shall be paid out of the proceeds derived from * * * the sale before making remittance
to the State Treasurer. The time limit * * * specified for affixing * * * the stamps shall not apply to any
person who, within * * *
the time * * *
limit, shall offer for sale, either at wholesale or retail, any
cigarettes, and all cigarettes when offered for sale either at wholesale or
retail without the stamps having been first affixed, shall be subject to
confiscation. * * * Any vehicle, not a common carrier, which may be used
in transporting for the purpose of sale any unstamped cigarettes, shall * * * be subject to confiscation and sale in
the same manner as above provided.
* * *
SECTION 2. Section 27-69-55, Mississippi Code of 1972, is amended as follows:
27-69-55. (1) In
all cases of seizures of any tobacco, or other property * * * subject to forfeiture
under the provisions of this chapter, * * *
the * * *
officer or person making the seizure shall proceed * * *
to give notice * * * of the seizure for five (5)
days, in writing, at three (3) places in the county where the seizure is made.
One (1) of the notices shall be posted at the county courthouse; another at the
place where the goods were seized; and the other at some public place. The
notice shall describe the property seized, and state the time and place and
cause of seizure, and give the name and place of residence, if known, of the
person from whom the property was seized, and shall require any person claiming
it to appear and make such claims in writing, within five (5) days from the
date of the first posting of * * * the notice. * * * The officer or person making the
seizure shall also deliver to the person from whom the property was seized, and
also to the owner, if known, a copy of said notice.
(2) * * * Any person claiming the * * * property * * * seized as contraband within the time
specified in the notice, may file with the commissioner a claim, in writing,
stating his interest in the property seized, and may execute a bond to the
State of Mississippi in a penal sum equal to double the value of * * * the property so seized, but in no
case shall * * *
the bond be less than the sum of One Hundred Dollars ($100.00), with
securities to be approved by the clerk of the circuit court in the county in
which the property is seized, conditioned that in the case of condemnation of
the property so seized, the obligor shall pay to the State of Mississippi the
full value of the property so seized, and all costs and expenses of the
proceedings to obtain * * *
the condemnation, including a reasonable attorney's fee. And upon the
delivery of * * *
the bond to the commissioner, he shall transmit * * * it with the duplicate list or
description of the property seized to the county attorney of the county, or the
district attorney of the district in which such seizure was made, and the * * * county attorney, or district attorney, as
the case may be, shall prosecute the case to secure the forfeiture of * * * the property in the court having
jurisdiction. Upon the filing of the bond * * *, the * * * property shall be delivered to the
claimant pending the outcome of the case, provided he shall at once affix the
required stamps on cigarettes or pay the tax due on other tobacco products.
* * *
(3) * * * In proceedings to secure a confiscation
of the property * * *, where the value of the goods seized at one time does not
exceed the amount provided in Section 9-11-9, the justice court judge of the
county where the property is seized shall have jurisdiction to try the cause.
Where the value of the property seized at one time is in excess of the amount
provided in Section 9-11-9, then the circuit court of the county where the
property is seized shall have jurisdiction to try the cause; * * * however, in counties
having a county court, the county court shall have jurisdiction concurrent with
the circuit court, and with the justice court where the value of the property
seized does not exceed One Thousand Dollars ($1,000.00).
(4) The proceedings against property seized according to the provisions of this chapter shall be considered a proceeding in rem unless otherwise herein provided.
(5) Within ten (10)
days after filing the bond provided for in * * * subsection (2) of
this section, the claimant shall file a petition in the court having
jurisdiction of * * *
the cause, which shall stand for a declaration, and the commissioner, or
other party authorized to prosecute the confiscation of * * * the property, shall plead to it as
if it were an ordinary action at law, and the same rules of pleading and
proceeding applicable to actions in the circuit court shall be observed in this
action, and all issues made by the pleadings shall be tried and disposed of as
other actions in the circuit court, and the judgment of the circuit court shall
be framed to meet the circumstances of the case and the cost shall be adjudged
as in other actions; * * *
however, neither the state, nor the commissioner, nor any other person
representing the state, shall be liable for the cost in the event the court
shall not confiscate the property in controversy.
* * *
(6) (a) If no claim is interposed and no bond filed within the time required by this section, the property shall be forfeited without further proceedings. The commissioner shall issue an order requiring the tobacco or other property to be sold for the benefit of the state or order the tobacco to be destroyed by the department by burning or other method that renders the tobacco unfit for consumption.
(b) If the commissioner orders the tobacco or other property sold, the tobacco or other property shall be sold to the highest bidder. The offer for sale shall be made to not less than three (3) qualified prospective buyers, by mailing them an invitation to bid, which shall describe the property, terms of sale, method of delivery, manner of bidding and fixing a time of not more than fifteen (15) days from the date of invitation for opening of bids received by the department. If no reasonable response is received by the department, the tobacco shall be destroyed in the manner described in paragraph (a) of this subsection.
(c) All bids and payment shall be made in the manner prescribed by the department. After opening, the bids shall be subject to public inspection.
(d) If cigarettes are purchased:
(i) The purchaser shall cause Mississippi cigarette stamps to be affixed to the cigarettes purchased within seventy-two (72) hours from receipt of the cigarettes purchased as provided in this subsection. If the purchaser is a licensed wholesaler under this chapter who is a qualified interstate dealer under Section 27-69-33, the purchaser shall have the option of placing the purchased cigarettes in his segregated stock for interstate business within the seventy-two-hour period without affixing Mississippi cigarette stamps. Any partial stamps affixed to the cigarettes shall be removed prior to releasing such cigarettes for interstate business.
(ii) If the purchaser maintains a bonded warehouse under Section 27-69-29, the purchaser shall have the option of placing the purchased cigarettes in the bonded warehouse within the seventy-two-hour period without affixing Mississippi cigarette stamps.
(iii) If because of the volume purchased, the purchaser is unable to stamp or dispose of the cigarettes purchased within the seventy-two-hour period, the commissioner may grant a reasonable extension of this period and may condition the extension upon the purchaser adequately securing the cigarettes purchased until the cigarettes are stamped or disposed of as provided in this paragraph.
(iv) The commissioner may require the purchaser to provide information, by report or otherwise, regarding the disposition of the cigarettes purchased at the public auction and is authorized to disclose this information to any federal agency and/or to any agency of the state to which any of the cigarettes purchased are shipped.
(7) Nothing in this section shall be construed to limit any authority granted by Section 27-69-57.
SECTION 3. Section 27-69-59, Mississippi Code of 1972, is amended as follows:
27-69-59. When the
commissioner has good reason to believe that tobacco is being kept, sold,
offered for sale, or given away in violation of this chapter, or regulations
issued under authority * * *
of this chapter, he may make affidavit of * * * that fact, describing the place or
thing to be searched, before any justice of the peace, mayor of any city, town
or village, or county or circuit judge of any county in this state, and * * * the justice of the peace, mayor or
county or circuit judge shall issue a search warrant directed to the sheriff or
any constable or any police officer in any city, town or village, commanding
him to proceed in the day time, or in the night time, to enter by breaking, if
necessary, and to diligently search any building, room in a building,
outhouses, place, wagon, cart, buggy, motorcycle, motor truck, automobile,
water or air craft, or other vehicle as may be designated in the affidavit and
search warrant, and to seize such tobacco so possessed and to hold the * * * tobacco until disposed of by law,
and to arrest the person or persons in possession or control of the * * *
tobacco.
* * * The writ shall be returnable
instanter, or on a day to be stated, and a copy shall be served on the owner or
person in possession, if * * *such the person be present or readily found.
If upon hearing, or the
return of such search warrant, it shall appear that any tobacco unlawfully
possessed were seized, the * * * tobacco shall be declared forfeited
to this state, and shall be * * * disposed of as provided in Section
27-69-55 * * *.
SECTION 4. This act shall take effect and be in force from and after its passage.
