(a) In all cases of seizure of any tobacco products or other property subject to forfeiture under this part, the officer or other person making the seizure shall proceed as follows:
Terms Used In Tennessee Code 67-4-1021
Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
Contract: A legal written agreement that becomes binding when signed.
Docket: A log containing brief entries of court proceedings.
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Person: means and includes every individual, firm, association, joint-stock company, syndicate and corporation. See Tennessee Code 67-4-1001
Pleadings: Written statements of the parties in a civil case of their positions. In the federal courts, the principal pleadings are the complaint and the answer.
Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
Reporter: Makes a record of court proceedings and prepares a transcript, and also publishes the court's opinions or decisions (in the courts of appeals).
Sale: means , in addition to its usual meaning, any sale, use, transfer, exchange, barter, gift, or offer for sale and distribution, in any manner or by any means whatsoever. See Tennessee Code 67-4-1001
State: means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States and any foreign country or political subdivision thereof. See Tennessee Code 67-4-2004
Subpoena: A command to a witness to appear and give testimony.
Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
United States: includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
Vending machine: means any money-in-the-slot device used for the automatic merchandising of tobacco products, and each such machine shall be considered as a separate retail dealer. See Tennessee Code 67-4-1001
Writ: A formal written command, issued from the court, requiring the performance of a specific act.
Writ of certiorari: An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.
written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(1) (A) Upon confiscation, or as soon thereafter as practicable, written notice shall be given by the department to the person from whom the confiscation was made, and to all others with a legal interest in the property confiscated who are either made known to the department or who, by a reasonable examination of public records of titles and liens, should have been discovered;(B) The notice shall state a description of the property confiscated, the reason for confiscation, the method for seeking recovery, the time limit for seeking recovery, and the result of failure to seek or obtain recovery by the designated method;(C) Such notice may be by personal delivery or by mail, either of which may be made to the last known address of the interested party; (2) All such property seized and confiscated under this part shall be sold at public sale by the department of general services, when the property has been turned over to it by the commissioner of revenue, as authorized by law under title 12, chapter 2, part 2; (3) In the case of any contraband property seized by any law enforcement officer of any incorporated municipality or of any county and turned over to the department of revenue for confiscation, there shall be paid to the municipality or to the county served by such officer fifty percent (50%) of the net proceeds thereof; and (4)(A) Any person claiming any property so seized as contraband goods may, within ten (10) days from the date of seizure, and after executing a bond for costs with one (1) or more good and solvent sureties in the sum of two hundred fifty dollars ($250), made payable to the state of Tennessee, or upon executing a pauper’s oath as required by law, file with the commissioner at Nashville a claim in writing, requesting a hearing and stating the person’s interest in the articles seized;(B) The commissioner shall set a date for a hearing within ten (10) days from the day the claim is filed;(C) The commissioner is empowered to subpoena witnesses and compel their attendance at hearings authorized under this subdivision (a)(4);(D) All parties to the proceeding, including the person claiming such property, shall have the right to have subpoenas issued by the commissioner to compel the attendance of all witnesses deemed by such parties to be necessary for a full and complete hearing;(E) All witnesses shall be entitled to the witness fees and mileage provided by law for legal witnesses, which fees and mileage shall be paid as a part of the costs of such proceeding.(b) In any hearing convened upon proper petition of an interested party, the initial burden shall be upon the state to show by a preponderance of the evidence that the property in question was of such nature or was used in such manner as to be declared as contraband. Upon meeting this burden, the property shall be forfeited as provided by law, unless the claimant shall prove that the claimant is nevertheless qualified under this part, or otherwise, to recover the property in question.(c)(1) In the event the ruling of the commissioner is favorable to the claimant, the commissioner shall deliver to the claimant the tobacco products or property so seized.(2) If the ruling of the commissioner is adverse to the claimant, the sale of such contraband goods shall be by the department of general services as provided by subsection (a).(3) The expenses of storage, transportation, and other costs shall be adjudged as a part of the cost of the proceeding in such manner as the commissioner shall fix.(d) Pending any proceeding to recover any tobacco product, vending machine, vehicle, aircraft or boat seized under this part, the commissioner may order delivery of such item to any claimant who shall establish the claimant’s right to immediate possession of the tobacco product, vending machine, vehicle, aircraft or boat, and who shall execute, with one (1) or more sureties approved by the commissioner, and deliver to the commissioner, a bond in favor of the state of Tennessee for the payment of a sum double the appraised value of the tobacco product, vending machine, vehicle, aircraft or boat as of the time of the hearing; and conditioned further, that if the tobacco product, vending machine, vehicle, aircraft or boat is not returned at the time of hearing, the bond shall stand in lieu of and be forfeited in the same manner as such tobacco product, vending machine, vehicle, aircraft or boat.(e)(1) The commissioner may personally hold such hearings as the commissioner may deem proper.(2) In addition to a personally held hearing, the commissioner is authorized to designate a hearing officer who may hold such hearings in the place of and in the absence of the commissioner.(3) Such hearing officer shall make findings of fact, conclusions of law and proposed order based on the hearing. If the commissioner concurs, the commissioner shall issue the order; or the commissioner may, upon review of the record, make such findings, conclusions and issue such order as in the commissioner’s discretion the record justifies.(4) At all hearings provided for in this section, the commissioner shall provide a stenographer or court reporter to take a stenographic record of the evidence adduced at such hearing. The claimant or protestant shall be entitled to a copy of the stenographic record, upon application for the record, and upon paying the reasonable cost of the record to be fixed by the commissioner.(f) The action of the commissioner may be reviewed by petition for common lawwrit of certiorari, addressed to the chancery or circuit court of Davidson County, which petition shall be filed within ten (10) days from the date the order of the commissioner is made.(g)(1) Immediately upon the grant of the writ of certiorari, the commissioner shall cause to be made, certified and forwarded to the court a complete transcript of the proceedings in the cause, which shall contain all the proof submitted before the commissioner.(2) All defendants named in the petition desiring to make defense shall answer or otherwise plead to the petition within ten (10) days from the date of the filing of the transcript, unless the time be extended by the court. (h)(1) The decision of the commissioner shall be reviewed by the circuit court solely upon the pleadings and the transcript of the proceedings before the commissioner, and neither party shall be entitled to introduce any additional evidence in the circuit court.(2) The confiscated goods shall not be sold pending such review, but shall be stored by the department until the final disposition of the case, unless bond has been posted as elsewhere provided in subsection (a).(i)(1) Within the discretion of the commissioner, the claimant may be awarded possession of the confiscated goods pending the decision of the circuit court under the petition of certiorari; provided, that the claimant shall be required to execute a bond payable to the state of Tennessee in an amount double the value of the property seized, the sureties to be approved by the commissioner.(2) The condition of the bond shall be that the obligors shall pay to the state, through the department, the full value of the goods or property seized, unless upon certiorari the decision of the commissioner shall be reversed and the property awarded to the claimant. (j)(1) Either party dissatisfied with the judgment or decree of the circuit court may, upon giving bond as required in other suits, appeal and have a reexamination, in the appellate court, of the whole matter of law and fact appearing in the record.(2) When any such appeal is made, the clerk of the circuit court in which such suit was pending shall include as a part of the record the original certified transcript of the proceedings had before the commissioner when identified by the trial judge instead of a bill of exceptions, which need not be made and filed.(3) The appeal shall be advanced upon the docket of the appellate court as one of such precedence, and heard as promptly as practicable.(k) If no claim is interposed, such tobacco products or other property shall be forfeited without further proceedings and the property shall be sold as provided in this section.(l) The procedure in subsection (j) is the sole remedy of any claimant, and no court shall have jurisdiction to interfere with the remedy by replevin, injunction, supersedeas or in any other manner.(m)(1) Whenever, in any proceeding under this section, a claim is filed for any vending machine, vehicle, aircraft or boat seized, as provided in this section, by an owner or other person asserting the interest of the owner, the commissioner shall not allow the claim, unless and until the claimant proves that:
(A) The claimant has an interest in such property that the claimant acquired in good faith; and(B) The claimant had at no time any knowledge or reason to believe that the seized item was being or would be used in the violation of the laws of the United States or of this state relating to tobacco products. (2) Whenever, in any proceeding under this section, a claim is filed for any property seized, as provided in this section, by a person who is the holder of a security interest or other claim arising out of a contract or agreement, the commissioner shall not allow the claim, unless and until the claimant proves that the claimant has an interest in such property that the claimant acquired in good faith. An interest that is acquired in the ordinary course of business shall be presumed to be in good faith, unless the commissioner receives evidence that the holder of the security interest had knowledge, at the time the interest attached, of the intended illegal use of the vehicle or was a co-conspirator in furtherance of the illegal activity. A holder of a security interest that is other than a natural person shall be considered a co-conspirator for purposes of this section, if evidence shows that an officer, employee or agent of the holder acting within the scope of employment is a co-conspirator, and the holder either:
(A) Has actual knowledge of the illegal activities of the officer, employee or agent from an individual other than the officer, employee or agent and fails to take appropriate action; or (B) Has failed to reasonably supervise or monitor the activities of the holder’s officer, employee or agent.(3) In the event the interest of the owner is forfeited as provided in subdivision (m)(1) and the interest of the holder of a security interest is not forfeited as provided in subdivision (m)(2), the commissioner may, at the request of the holder of such interest, return the property to the holder for disposition in accordance with the applicable security agreement or other contract. If the commissioner does not return the property to the holder, the forfeiture shall be subject to the holder’s interest.(4) An owner whose interest is forfeited after being arrested for or charged with any felony shall be ineligible to purchase the property from, or to bid at any sale of the property by, the commissioner or any seizing agency. The owner whose interest is forfeited after being arrested for or charged with any felony shall also be ineligible to redeem the property from, or to bid at any sale of the property by, any holder of a security interest acting pursuant to the agreement contract or title 47, chapter 9.
