Sponsored by:
Assemblywoman LINDA STENDER
District 22 (Middlesex, Somerset and Union)
SYNOPSIS
Establishes procedure for destroying certain contraband tobacco products and cigarettes.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the forfeiture of certain contraband tobacco products and cigarettes, supplementing P.L.1990, c.39 (C.54:40B-1 et seq.), and amending P.L.1948, c.65 and N.J.S.2C:64-1.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. Notwithstanding any other provision of law, the possession for sale of untaxed tobacco products, unstamped or illegally stamped cigarettes, or other contraband tobacco products or cigarettes by a manufacturer, importer, distributor, wholesale dealer, retail dealer, or any other person shall, after notice and hearing, result in the forfeiture to this State of the product and related machinery and equipment used to falsely mark tobacco products or cigarettes to reflect the payment of excise taxes, or in the production of such tobacco products or cigarettes.
b. The knowing sale or possession for sale of untaxed tobacco products, unstamped or illegally stamped cigarettes, or other contraband tobacco products shall, after notice and a hearing, result in the seizure of all tobacco products and cigarettes, related machinery, and equipment.
c. All tobacco products and cigarettes forfeited to this State under this section shall be destroyed. The director, prior to the destruction of any tobacco products or cigarettes, may permit the true holder of the trademark rights in the tobacco product or cigarette brand to inspect such contraband tobacco products or cigarettes, in order to assist the director in any investigation regarding such tobacco product or cigarettes.
d. The seizure of any untaxed tobacco products, unstamped or illegally stamped cigarettes, or other contraband tobacco products under the provisions of this section shall not relieve any person from a fine, imprisonment, or other penalty for a violation of any provision of this act. The director, the director's agents, employees, or any law enforcement officer of this State, when directed to do so, shall not in any way be responsible in any court for the seizure or the confiscation of any untaxed tobacco products, unstamped or illegally stamped cigarettes, or other contraband tobacco products.
2. Section 607 of P.L.1948, c.65 (C.54:40A-30) is amended to read as follows:
607. [Unstamped cigarettes subject to confiscation] Forfeiture of unstamped or illegally stamped cigarettes or other contraband cigarettes.
a. [All cigarettes, subject to the tax imposed by this act, to which stamps have not been affixed, as required by this act, and all cigarettes stamped in violation of subsection b. of section 405 of P.L.1948, c.65 (C.54:40A-15) found in any place in this State are declared to be prima facie contraband goods and may be seized by the director, the director's agents or employees, or by any peace officer of this State, when directed by the director so to do, without a warrant] Notwithstanding any other section of law, the possession for sale of unstamped or illegally stamped cigarettes or other contraband cigarettes by a manufacturer, importer, distributor, wholesale dealers or retail dealer shall, after notice and hearing, result in the forfeiture to this State of the product and related machinery and equipment used to falsely mark cigarettes to reflect the payment of excise taxes, or in the production of contraband cigarettes.
b. [The director may upon satisfactory proof direct the return of any unstamped confiscated cigarettes when the director shall have reason to believe that the owner thereof has not willfully or intentionally evaded any tax imposed by this act. Any unstamped cigarettes seized under the provisions of this act shall be disposed of according to law. Any purchaser of such cigarettes shall be required to affix stamps as required by this act] The knowing sale or possession for sale of unstamped or illegally stamped cigarettes or other contraband shall, after notice and hearing, result in the seizure of all related machinery and equipment.
c. [The director shall destroy any seized cigarettes that have been stamped in violation of subsection b. of section 405 of P.L.1948, c.65 (C.54:40A-15); provided however that as an alternative the director may resell such cigarettes to the manufacturer, but such cigarettes shall be resold only for export or destruction] All cigarettes forfeited to this State under this section shall be destroyed. The director may, prior to the destruction of cigarettes, permit the true holder of the trademark rights in the cigarette brand to inspect such cigarettes, in order to assist the director in any investigation regarding such cigarettes.
d. The seizure [and sale] of any unstamped or illegally stamped cigarettes or any other contraband cigarettes under the provisions of this section shall not relieve any person from a fine, imprisonment or other penalty for violation of any of the provisions of this act. The director, the director's agents, employees, and any peace officer of this State, when directed so to do, shall not in any way be responsible in any court for the seizure or the confiscation of any unstamped or illegally stamped packages of cigarettes.
(cf: P.L.1999, c.328, s.6)
3. N.J.S.2C:64-1 is amended to read as follows:
2C:64-1. Property Subject to Forfeiture.
a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
(1) Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed or otherwise contraband cigarettes or tobacco products, untaxed special fuel, unlawful sound recordings and audiovisual works and items bearing a counterfeit mark. These shall be designated prima facie contraband.
(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.
(3) Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.
(4) Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.
b. Any article subject to forfeiture under this chapter may be seized by the State or any law enforcement officer as evidence pending a criminal prosecution pursuant to section 2C:64-4 or, when no criminal proceeding is instituted, upon process issued by any court of competent jurisdiction over the property, except that seizure without such process may be made when not inconsistent with the Constitution of this State or the United States, and when
(1) The article is prima facie contraband; or
(2) The property subject to seizure poses an immediate threat to the public health, safety or welfare.
c. For the purposes of this section:
"Items bearing a counterfeit mark" means items bearing a counterfeit mark as defined in N.J.S.2C:21-32.
"Unlawful sound recordings and audiovisual works" means sound recordings and audiovisual works as those terms are defined in N.J.S.2C:21-21 which were produced in violation of N.J.S.2C:21-21.
"Untaxed special fuel" means diesel fuel, No. 2 fuel oil and kerosene on which the motor fuel tax imposed pursuant to R.S.54:39-1 et seq. is not paid that is delivered, possessed, sold or transferred in this State in a manner not authorized pursuant to R.S.54:39-1 et seq. or P.L.1938, c.163 (C.56:6-1 et seq.).
(cf: P.L.2004, c.150, s.3)
4. This act shall take effect immediately.
STATEMENT
This bill supplements the "Tobacco Products Wholesale Sales and Use Tax Act" to require that untaxed tobacco products, unstamped or illegally stamped cigarettes, or other contraband tobacco products or cigarettes that are sold or possessed by a manufacturer, importer, distributor, wholesale dealer, retail dealer any other person, following notice and a hearing, be forfeited to the State. The bill further requires that any machinery or equipment used to produce the tobacco products or cigarettes, or falsely mark the tobacco products or cigarettes to reflect the payment of excise taxes, are also subject to forfeiture.
Following the forfeiture of the untaxed or otherwise contraband tobacco products or cigarettes, all such products are to be destroyed. The bill provides that the seizure of any contraband tobacco products or cigarettes not relieve any person from a fine, imprisonment, or other penalty under the law.
In addition, this bill amends part of the "Cigarette Tax Act" to mirror the changes that the bill makes to the "Tobacco Products Wholesale Sales and Use Tax Act."
Finally, untaxed or otherwise contraband tobacco products are added to the list of items that are considered to be prima facie contraband under the criminal code and, as such, are subject to forfeiture and for which there are no property rights.