Bill Text: MI SB0813 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Civil procedure; other; release of vehicle seized under the tobacco products tax act if person arrested is released without charges or is acquitted or if charges are dismissed; provide for. Amends sec. 9 of 1993 PA 327 (MCL 205.429). TIE BAR WITH: SB 0812'11
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-11-10 - Referred To Committee On Judiciary [SB0813 Detail]
Download: Michigan-2011-SB0813-Introduced.html
SENATE BILL No. 813
November 10, 2011, Introduced by Senator HUNTER and referred to the Committee on Judiciary.
A bill to amend 1993 PA 327, entitled
"Tobacco products tax act,"
by amending section 9 (MCL 205.429), as amended by 2004 PA 474.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 9. (1) A tobacco product held, owned, possessed,
transported, or in control of a person in violation of this act,
and a vending machine, vehicle, and other tangible personal
property containing a tobacco product in violation of this act and
any related books and records are contraband and may be seized and
confiscated by the department as provided in this section.
(2) If an authorized inspector of the department or a police
officer has reasonable cause to believe and does believe that a
tobacco product is being acquired, possessed, transported, kept,
sold, or offered for sale in violation of this act for which the
penalty is a felony, the inspector or police officer may
investigate or search the vehicle of transportation in which the
tobacco product is believed to be located. If a tobacco product is
found in a vehicle searched under this subsection or in a place of
business inspected under this act, the tobacco product, vending
machine, vehicle, other than a vehicle owned or operated by a
transportation company otherwise transporting tobacco products in
compliance with this act, or other tangible personal property
containing those tobacco products and any books and records in
possession of the person in control or possession of the tobacco
product may be seized by the inspector or police officer and are
subject to forfeiture as contraband as provided in this section.
(3) As soon as possible, but not more than 5 business days
after seizure of any alleged contraband, the person making the
seizure shall deliver personally or by registered mail to the last
known address of the person from whom the seizure was made, if
known, an inventory statement of the property seized. A copy of the
inventory statement shall also be filed with the state treasurer.
The
inventory statement shall also contain a notice to the effect
that, unless demand for hearing as provided in this section is made
within 10 business days, the designated property is forfeited to
the state. If the person from whom the seizure was made is not
known,
the person making the seizure shall cause have a copy of the
inventory
statement , together with and the notice provided for
in
required
by this subsection , to be published
at least 3 times in a
newspaper of general circulation in the county where the seizure
was made. Within 10 business days after the date of service of the
inventory
statement , or, in the case of publication if the notice
is published, within 10 business days after the date of last
publication, the person from whom the property was seized or any
person claiming an interest in the property may, by registered
mail, facsimile transmission, or personal service, file with the
state treasurer a demand for a hearing before the state treasurer
or a person designated by the state treasurer for a determination
as
to of whether the property was lawfully subject to seizure
and
forfeiture. The person demanding a hearing shall verify a request
for hearing filed by facsimile transmission by also providing a
copy of the original request for hearing by registered mail or
personal
service. The person or persons are A person who demands a
hearing is entitled to appear before the department, to be
represented
by counsel, and to present testimony and argument. Upon
receipt
of a request for hearing, the The
department shall hold the
hearing within 15 business days after receiving the request for the
hearing. The hearing is not a contested case proceeding and is not
subject to the administrative procedures act of 1969, 1969 PA 306,
MCL
24.201 to 24.328. After the hearing, the The department shall
render
its decision in writing within 10 business days of after the
hearing and, by order, shall either declare the seized property
subject to seizure and forfeiture, or declare the property
returnable in whole or in part to the person entitled to
possession. If, within 10 business days after the date of service
of the inventory statement, the person from whom the property was
seized or any person claiming an interest in the property does not
file with the state treasurer a demand for a hearing before the
department, the property seized shall be considered forfeited to
the state by operation of law and may be disposed of by the
department as provided in this section. If, after a hearing before
the state treasurer or person designated by the state treasurer,
the department determines that the property is lawfully subject to
seizure and forfeiture and the person from whom the property was
seized or any persons claiming an interest in the property do not
take an appeal to the circuit court of the county in which the
seizure was made within the time prescribed in this section, the
property seized shall be considered forfeited to the state by
operation of law and may be disposed of by the department as
provided in this section.
(4)
If a A person is aggrieved by the decision of the
department
, that person may appeal to the circuit court of the
county where the seizure was made to obtain a judicial
determination of the lawfulness of the seizure and forfeiture. The
action shall be commenced within 20 days after notice of the
department's determination is sent to the person or persons
claiming an interest in the seized property. The court shall hear
the action and determine the issues of fact and law involved in
accordance with rules of practice and procedure as in other in rem
proceedings. If a judicial determination of the lawfulness of the
seizure and forfeiture cannot be made before deterioration of any
of the property seized, the court shall order the destruction or
sale of the property with public notice as determined by the court
and require the proceeds to be deposited with the court until the
lawfulness of the seizure and forfeiture is finally adjudicated.
(5) Section 2977 of the revised judicature act of 1961, 1961
PA 236, MCL 600.2977, applies to a motor vehicle that has been
seized under this act but not forfeited.
(6) (5)
The department shall destroy all cigarettes forfeited
to this state. The department may sell all tobacco products, except
cigarettes, and other property forfeited pursuant to this section
at public sale. Public notice of the sale shall be given at least 5
days before the day of sale. The department may pay an amount not
to exceed 25% of the proceeds of the sale to the local governmental
unit whose law enforcement agency performed the seizure. The
balance of the proceeds derived from the sale by the department
shall be credited to the general fund of the state.
(7) (6)
The seizure and destruction or sale of a tobacco
product or other property under this section does not relieve a
person from a fine, imprisonment, or other penalty for violation of
this act.
(8) (7)
A person who is not an employee or officer of this
state or a political subdivision of this state who furnishes to the
department
or to any a law enforcement agency original information
concerning
a violation of this act , which information that results
in
the collection and recovery of any a tax or penalty or leads to
the
forfeiture of any cigarettes , or other property , may be
awarded
and paid by the state treasurer , compensation of not more
than 10% of the net amount received from the sale of any forfeited
cigarettes or other property, but not to exceed $5,000.00, which
shall be paid out of the receipts from the sale of the property. If
any
amount money is issued paid to the local
governmental unit
under
subsection (5) (6), the amount awarded under this subsection
to
a person who provides original information that results in a
seizure
of cigarettes or other property by a local law enforcement
agency
shall be paid from that amount
issued under subsection (5)
money. If in the opinion of the attorney general and the director
of
the department of state police it is deemed necessary to
preserve the identity of the person furnishing the information, the
attorney general and the director of the department of state police
shall
file with the state treasurer an affidavit setting forth
stating that necessity and a warrant may be issued jointly to the
attorney general and the director of the department of state
police.
Upon payment to the a person furnishing that information
under this subsection, the attorney general and the director of the
department of state police shall file with the state treasurer an
affidavit
that they have paid the money has been by them paid to
the
person. entitled to the money under this section.
(9) (8)
Beginning September 1, 1998, if a retailer possesses
or sells cigarettes on which the tax imposed under this act has not
been paid or accrued to a wholesaler, secondary wholesaler, or
unclassified acquirer licensed under this act, the retailer shall
be prohibited from purchasing, possessing, or selling any
cigarettes or other tobacco products as follows:
(a) For a first violation, for a period of not more than 6
months.
(b) For a second violation within a period of 5 years, for a
period of at least 6 months and not more than 36 months.
(c) For a third or subsequent violation within a period of 5
years, for a period of at least 1 year and not more than 5 years.
(10) (9)
The prohibition described in subsection (8) shall be
(9) is effective upon service by certified mail or personal service
on the retailer of notice issued by the department ordering the
retailer to cease all sales and purchases of cigarettes and other
tobacco products. Upon receipt of this notice, the retailer may
return any tobacco products in the possession of the retailer upon
which the tax imposed by this act has been paid or accrued to a
wholesaler, secondary wholesaler, or unclassified acquirer licensed
under this act. The department shall notify all licensed
wholesalers, manufacturers, secondary wholesalers, vending machine
operators,
and unclassified acquirers of any retailer who that the
retailer has been prohibited from purchasing cigarettes or other
tobacco products and the duration of the prohibition. A wholesaler,
secondary wholesaler, or unclassified acquirer shall not sell
cigarettes or other tobacco products to a retailer after receipt of
notice from the department that the retailer is prohibited from
purchasing tobacco products. Any cigarettes or other tobacco
products found on the premises of the retailer during the period of
prohibition
shall be considered are contraband and subject to
seizure
under this section, and shall constitute their possession
constitutes an additional improper possession under this
subsection. The retailer may contest the order prohibiting
purchase, possession, or sale of tobacco products in accordance
with the appeal procedures and time limits provided in subsection
(3). of
this section. After completion of the appeals provided an
appeal
or upon expiration of the period to
request such an appeal,
the
department shall issue a final order and make service upon
serve
on the retailer of an order to
cease all purchases,
possession, and sale of all cigarettes and other tobacco products
for a specified period as appropriate. This order does not relieve
the retailer from seizure and sale of a tobacco product or other
property
under this section , or relieve the retailer from a fine,
imprisonment, or other penalty for violation of this act.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 812
of the 96th Legislature is enacted into law.
