§865.  Seizure and forfeiture of unstamped taxable articles

A.  All cigars, cigarettes, and smoking tobacco, on which taxes are imposed by this Chapter, found in possession or custody or within the control of any person for the purpose of being sold, or removed by him, in violation of the provisions of this Chapter, or with the design to avoid payment of the taxes, may be seized by the secretary, or his agent, in order to secure the same for trial, and the same shall be forfeited to the state of Louisiana.  The secretary or his agent making the seizure shall appraise the value of the same according to his best judgment at the usual and ordinary retail price of the article seized and shall deliver to the person, found in possession of the same, a receipt showing the fact of seizure, stating from whom seized, the place of seizure, and description of the goods, and appraised value.  A duplicate of this receipt shall be filed in the office of the secretary and shall be open to public inspection.

B.  The proceeding to enforce this forfeiture shall be by rule and be in the nature of a proceeding in rem in a court of competent jurisdiction where such seizure is made.  The proceeding shall be filed by the secretary, or his assistant on behalf of the state of Louisiana, and the same shall be summary, and it may be tried out of term time and in chambers and shall always be tried by preference.

C.(1)  Whenever the petition for rule shall be sworn to by the secretary, or an assistant, that the facts contained are true, and accompanied with a duplicate copy of the notice of seizure, the same shall constitute a prima facie case, but may be rebutted by the defendant.

(2)  The proceeding shall be directed against the owner of the articles seized, demanding the forfeiture and sale of said property, as a penalty for the violation of this Chapter. Service of the proceeding shall be made upon the owner of the seized articles if he is a resident of this state, or his residence is known to the plaintiff in rule.  In all cases where it is made to appear by affidavit that the residence of the owner of the seized articles is out of the state or is unknown to the secretary or his assistants, an attorney at law shall be appointed by the court, which has jurisdiction of the proceedings, to represent the owner, against whom the rule shall be tried contradictorily within ten days from the date of the filing of same.  The affidavit may be made by the secretary, or one of his assistants, or by the attorney representing the secretary, if it is not convenient to obtain the affidavit of the secretary or one of his assistants.  The attorney appointed to represent the owner of the seized articles may waive service and citation of the petition or rule, but he shall not waive time nor any legal defense.

(3)(a)  Upon the trial of said proceedings if it is established by satisfactory proof that with respect to the articles under seizure that this Chapter has been violated in any respect, then the court shall render judgment accordingly, maintaining the seizure, declaring the forfeiture of said seized property, and ordering the sale thereof after ten days notice of advertisement at least twice in the official parish paper where seizure is made.  The sale shall be made in the parish of Orleans by the civil sheriff and in the several parishes in the state of Louisiana by the sheriff at public auction.  The intent and purpose of this proceeding is to afford the owner of said seized articles a fair opportunity of hearing in a court of competent jurisdiction.

(b)  If cigarettes are seized and such cigarettes are in packages described in R.S. 47:843(D)(2) or are stamped in violation of R.S. 47:843(D)(2), the secretary may not sell the cigarettes, but shall destroy such cigarettes or dedicate them to be used for law enforcement purposes and then destroyed.

(c)(i)  Any cigarettes that are acquired, held, owned, possessed, transported in, imported into, or sold or distributed in this state in violation of this Chapter or R.S. 13:5061 et seq. shall be deemed contraband and are subject to seizure and forfeiture as provided in this Chapter.

(ii)  Any cigarettes so seized and forfeited shall be destroyed or used by law enforcement and then destroyed.  Such cigarettes shall be deemed contraband whether the violations of this Chapter or R.S. 13:5061 et seq. are knowing or otherwise.

(iii)  Any person who sells, distributes, or manufactures cigarettes and sustains direct economic or commercial injury as a result of a violation of this Chapter, may bring an appropriate action for injunctive relief against the violator in accordance with the provisions of the Code of Civil Procedure.

(4)  It is further the intent and purpose of this proceeding that the forfeiture and sale of the seized property shall be and operate as a penalty for the violation of this Chapter as aforesaid, and payment of the tax due on said seized articles at the moment of seizure or thereafter, shall not operate to prevent, abate, or discontinue, or defeat the said forfeiture and sale of the said property.

D.  The court may fix the fee of the attorney appointed by the court to represent the owner of the seized articles at a nominal sum to be taxed as costs and to be paid out of the proceeds of the sale of the property.

E.  In cases where in the opinion of the trial judge the value of the seized cigars, cigarettes, or smoking tobacco is so small as not to justify the expense of advertising and selling at public auction the seized commodities as hereinabove provided, the court may in any such case, in rendering judgment maintaining the seizure and declaring the forfeiture of the seized property, direct that the seized property be sold by the secretary at private sale, without advertisement, but shall direct that the seized property be not thus sold for a price less than a minimum figure to be fixed by the court in its judgment.

Acts 1999, No. 304, §1, eff. July 1, 1999; Acts 2001, No. 652, §1, eff. June 22, 2001; Acts 2013, No. 221, §3.