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Regular Session, 2011
HOUSE BILL NO. 548
BY REPRESENTATIVE GARY SMITH
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
ALCOHOLIC BEVERAGES: Provides with respect to the sale of property seized by the
office of alcohol and tobacco control
AN ACT1
To enact R.S. 26:21 through 28, and to repeal R.S. 26:370 through 375 and 309.1, relative2
to the Alcoholic Beverage Control Law; to provide with respect to the powers and3
duties of the commissioner of alcohol and tobacco control; to provide for4
applicability; to provide for definitions; to provide for the examination of records of5
permittees; to provide for searches, seizure, and forfeiture of beverages of high and6
low alcoholic content and tobacco products; to provide for authorized searches and7
warrants; to provide for authorized seizure; to provide for authorized forfeiture for8
perishable and nonperishable contraband; to repeal duplicative provisions; and to9
provide for related matters.10
Be it enacted by the Legislature of Louisiana:11
Section 1. R.S. 26:21 through 28 are hereby enacted to read as follows: 12
§21. Applicability13
The provisions of R.S. 26:21 through 28 shall apply to the general powers14
and duties of the commissioner of alcohol and tobacco control and shall be15
applicable to beverages of high or low alcoholic content and tobacco products.16
§22. Definitions17
For the purposes of this Title:18
(1) "Contraband per se" means any property seized which cannot be lawfully19
sold or possessed.20 HLS 11RS-420 ORIGINAL
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(2) "Monies, proceeds, or other fruits" includes but shall not be limited to the1
gross or net cash value paid in exchange for or as part of a transfer of ownership or2
possession of any property seized and any interest accrued thereon.3
(3) "Non-perishable" means any property seized which is not likely to4
diminish in value, in whole or in part, or otherwise be rendered valueless within a5
period of twelve months of seizure.6
(4) "Property" means any property, real or personal, which represents or is7
traceable to the net or gross proceeds obtained, directly or indirectly, in connection8
with any alleged violation of any applicable provisions of Titles 14, 26, 40, and 519
of the Revised Statutes of 1950, or Title 55 of the Louisiana Administrative Code10
and seized pursuant to any investigation conducted by the office of alcohol and11
tobacco control, whether such investigation was conducted independently or in12
cooperation with any other law enforcement or regulatory agency.13
(5) "Perishable" means any property which is likely to diminish in value, in14
whole or in part, or otherwise be rendered valueless within a period of twelve months15
of seizure.16
(6) "Sale" means any transaction transferring ownership of any property17
seized which may be lawfully sold or possessed in exchange for any sum of money.18
§23. Searches and seizures19
A. The commissioner or agents commissioned in accordance with R.S.20
26:796 may search and examine pursuant to the provisions of this Section all places21
of storage except private residences, which may be searched only in the manner22
provided by law, and all means of transportation whenever there is probable cause23
to believe that the provisions of this Title have been or are being violated. Any24
vehicle or other means of transportation, other than a common carrier, caught or25
detected transporting any alcoholic beverages without the required tax being paid or26
a bond furnished to guarantee the payment of the tax may be seized by the27
commissioner in order to secure it as evidence in a trial brought pursuant to any28
provisions of this Title.29 HLS 11RS-420 ORIGINAL
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B. No place, other than a place open to the public, shall be searched for1
alcoholic beverages except by a peace officer named in a search warrant issued by2
a competent court having the power of a committing magistrate upon the filing of an3
affidavit reciting that the affiant has reason to believe and believes that the named4
place is being utilized as a site for the violation of the provisions of this Title5
together with such additional evidence as the court may require to make a prima6
facie case. No house, room, or apartment used as, or which apparently is, a bona fide7
residence shall be subject to search, except by an officer designated in a search8
warrant issued by a competent court having the powers of a committing magistrate,9
upon the filing of an affidavit by two reliable persons reciting that they have reasons10
to believe and do believe that the place of residence is being used as a pretense for11
a violation of the provisions of this Title and setting forth the specific violation being12
committed therein, together with such additional corroborating evidence as the court13
may require to establish the probable existence of the alleged violation.14
C. The warrant shall be directed to a duly authorized peace officer and the15
premises described in the warrant shall be searched and all beverages, all equipment,16
and all property used, designed, or intended to be used for the sale of alcoholic17
beverages on the premises shall be seized by the peace officer. The keeper of the18
place of the person to whom the beverages or property belongs shall be apprehended19
and brought before the court issuing the warrant to abide the further orders of the20
court. The officer to whom the search warrant is directed shall make proper return21
thereon of the action taken pursuant to the warrant, describing the alcoholic22
beverages or property seized, if any. The beverages or property so seized shall be23
held by the commissioner without anyone having the right to have them released24
upon writ or claim, except beverages seized in a bona fide residence. Alcohol seized25
from a bona fide residence shall be released to the owner upon his giving bond, with26
security for their value conditioned upon their return to the peace officer upon order27
of the court. The court, after the trial of the accused, shall order all property and28
beverages of high alcoholic content illegally held by the accused at the time of the29 HLS 11RS-420 ORIGINAL
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seizure to be immediately and publicly destroyed by the sheriff or peace officer1
designated by the court or sold in accordance with R.S. 26:154.2
D. The court shall preserve in its records, subject to inspection at any time3
by the public, the affidavits as provided for in Subsection B of this Section. If the4
person or persons making the affidavit did so maliciously or without probable cause,5
and any house, room, or apartment used as a bona fide residence is searched by6
reason of the issuance of a search warrant based upon that affidavit, the affiant7
making it shall be fined not more than five hundred dollars, imprisoned for not less8
than ten days nor more than sixty days, or both.9
§24. Seizure and forfeiture of beverages of high or low alcoholic content and10
tobacco products11
A. All beverages of high or low alcoholic content and tobacco products on12
which taxes are imposed by this Title found in the possession or custody or within13
the control of any person for the purpose of being handled in any way in violation14
of this provisions of this Title may be seized by the commissioner, or his agents15
commissioned in accordance with R.S. 26:796, in order to secure them for trial and16
shall be forfeited to the state in the manner provided for in this Section. The17
commissioner, or his agent making the seizure, shall appraise the value of the18
property seized according to his best judgment at its usual and ordinary retail price19
and shall deliver to the person found in possession thereof, if any, a receipt showing20
the fact of seizure, from whom seized, the place of seizure, the description of the21
goods seized, and the appraised value of such goods. A duplicate of the receipt shall22
be filed in the commissioner's office.23
B. The proceeding to enforce this forfeiture shall be in the nature of a24
proceeding in rem in the court where the seizure is made. It shall be filed on behalf25
of the state by the commissioner and shall be summary process, tried in or out of26
term, in open court or in chambers, and always by preference. It shall be directed27
against the owner of the articles seized, demanding the forfeiture, destruction, or sale28
of the property as a penalty for the violation of this Title. Service shall be made29 HLS 11RS-420 ORIGINAL
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upon the owner of the seized articles if he is a resident of this state and his residence1
is known to the plaintiff in rule. Where it appears by affidavit that the residence of2
the owner of the seized articles is out of the state or is unknown to the commissioner3
or his assistants, an attorney shall be appointed by the court to represent the owner,4
against whom the rule shall be tried contradictorily within ten days after the date of5
its filing. This affidavit may be made by the commissioner or by the attorney6
representing the commissioner. The attorney so appointed to represent the owner of7
the seized articles may waive service and citation of the petition or rule, but shall not8
waive time nor any legal defense.9
C. If at any time it is established that, with respect to the articles under10
seizure, any provision of this Title has been violated in any cause, the court shall11
render judgment accordingly, maintaining the seizure, declaring the forfeiture of the12
seized property, and ordering the destruction or sale thereof and shall dispose of any13
equipment including but not limited to vending machines, in accordance with the14
following provisions.15
(1) If the seized property is contraband per se, the court shall order the16
property destroyed if the court determines that its destruction is in the public interest.17
(2) If the seized property is non-perishable derivative contraband, and the18
court determines that it should not be destroyed, or the owner of non-perishable19
property does not claim it within one year after its seizure, the court may order one20
of the following:21
(a) A sale of the property at a nonjudicial public sale or auction, if the court22
concludes that such a sale will probably result in a bid greater than the cost of the23
sale. The proceeds of the sale shall be placed in the Louisiana Office of Alcohol and24
Tobacco Officers Fund (R.S. 11:544) after compliance with the requirement of25
Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond26
Security and Redemption Fund.27
(b) A transfer of the property to a public or a nonprofit institution, or may28
make such other court-ordered disposition as it deems appropriate.29 HLS 11RS-420 ORIGINAL
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(3) Where the release of seized property is sought by a third party claiming1
to be the owner, it shall be released following a contradictory hearing. In all other2
cases, the court may render an ex parte order for the disposition of the property as3
herein provided on motion of any interested person, or on its own motion, or the4
court may require a motion contradictorily with the apparent owner or the person in5
possession of the property at the time of the seizure.6
(4) If any seized property is perishable:7
(a) The commissioner may petition a court of competent jurisdiction to order8
the sale of any perishable property at a nonjudicial public sale or auction, if the court9
concludes that such a sale will probably result in a bid greater than the cost of the10
sale. All monies, proceeds, funds, or other fruits of any such nonjudicial public sale11
or auction shall be placed in an escrow account maintained by and in the name of the12
office of alcohol and tobacco control.13
(b) Upon entry of a final judgment that any applicable provision of law or14
administrative rule adopted pursuant to the Administrative Procedure Act has been15
violated, all monies, proceeds, funds, or other fruits generated from any such16
nonjudicial public sale or auction shall be transferred to and otherwise placed in the17
Louisiana Office of Alcohol and Tobacco Officers Fund (R.S. 11:544) after18
compliance with the requirement of Article VII, Section 9(B) of the Constitution of19
Louisiana relative to the Bond Security and Redemption Fund.20
(c) Upon entry of a final judgment that no applicable provision of law or21
administrative rule adopted pursuant to the Administrative Procedure Act has been22
violated, all monies, proceeds, funds, or other fruits generated from any such23
nonjudicial public sale or auction may be returned or otherwise restored to any party24
who establishes lawful ownership. However, upon entry of a final judgment25
imposing or upholding any fine or other amount due to the Louisiana Department of26
Revenue or the office of alcohol and tobacco control shall be withheld from any27
amount returned to any party from which the returned perishable property was28
seized.29 HLS 11RS-420 ORIGINAL
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D. Payment of the tax due on the seized articles at the moment of seizure or1
thereafter shall not prevent, abate, or defeat the forfeiture, destruction, or sale of the2
property.3
E. The court shall fix the fee of the attorney appointed by it to represent the4
owner of the seized article at a nominal sum, to be taxed as costs and paid out of the5
proceeds of the sale of the property.6
§25. Claims to property seized by commissioner7
Any person who claims ownership of any property seized pursuant to the8
provisions of this Title relating to beverages of high or low alcoholic content or9
tobacco products or claims to be entitled to any privilege existing thereon prior to the10
date of seizure and, who did not participate in the violation of this Title which11
resulted in the seizure, may file a signed statement with the commissioner that he did12
not participate in the violation of this Title. Thereafter, upon his furnishing to the13
commissioner bond with security in a sum not less than double the appraised value14
of the goods seized but never less than fifty dollars, the property may be released by15
the commissioner and delivered to him. The bond shall be conditioned to pay the16
commissioner the appraised value of the goods and all costs, if the claimant does not17
prosecute his claim to successful judgment. If it is not practical to make service18
upon the claimant to the seized property or if the claimant is a non-resident, the19
procedure outlined in R.S. 26:372 for the appointment of an attorney to represent an20
owner may be used in order that the issue may be presented to a court and the21
claimant afforded a fair opportunity to be heard. If bond has been furnished by the22
claimant and the property released to him, the judgment of the court, if the23
contention of the commissioner is sustained, shall be directed against both the24
claimant and the surety on the bond and shall include all costs from the beginning25
of the seizure up to the final disposition of the case. All monies, proceeds, funds, or26
other fruits the court awards the commissioner shall be transferred to or otherwise27
placed in the Louisiana Office of Alcohol and Tobacco Officers Fund (R.S. 11:544)28 HLS 11RS-420 ORIGINAL
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after compliance with the requirement of Article VII, Section 9(B) of the1
Constitution of Louisiana relative to the Bond Security and Redemption Fund.2
§26. Waiver of forfeiture of beverages of high or low alcoholic content and tobacco3
products4
The commissioner may waive any proceedings for the forfeiture of beverages5
of high or low alcoholic content and tobacco products or any part thereof, if he finds6
that the violation of the law for which the goods were seized was unintentional or7
without intention to defraud the state of its revenue. However, the offender shall first8
pay double the amount of tax to which the seized beverages are subject.9
§27. Interference with inspection by the commissioner prohibited10
No person shall refuse to allow, on demand, the commissioner or his agent11
to make a full inspection of any place of business where beverages of high or low12
alcoholic content and tobacco products are kept or sold, nor shall any person refuse13
to allow, on demand, the commissioner or his agent to audit the books and records14
of any business dealing in alcoholic beverages, nor shall any person hinder or15
prevent such inspection or audit.16
§28. Commissioner's examination of records17
A. The commissioner, or agents commissioned in accordance with R.S.18
26:796, shall have the authority to examine invoices, sales and tax records, and other19
business documents of the holder of any permit issued under this Title. Such20
examination shall be conducted for the purpose of determining whether the permittee21
is a bona fide business which is operating in compliance with the requirements of22
this Title.23
B. The invoices, records, and documents examined shall be held confidential24
and shall not be made public by the commissioner unless it is necessary for them to25
be used in a judicial or administrative action to determine such matter.26
C. If a permittee refuses to allow the examination of the records as27
authorized by the provisions of this Section, the commissioner may proceed by rule28
in any court in the parish where the refusal occurred, requiring the person refusing29 HLS 11RS-420 ORIGINAL
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to show cause why the commissioner shall not be permitted to examine its books,1
records, and documents.2
D. Refusal by a permittee to allow the commissioner, or agents3
commissioned in accordance with R.S. 26:796, access to its books, records, and4
documents shall render any beverages of high or low alcoholic content and tobacco5
products within this state owned by or in the possession of or in the control of such6
person or his employer or agent subject to seizure, forfeiture, and sale as provided7
in this Title.8
* * *9
Section 2. The provisions of R.S. 26:370 through 375 and 309.1 are hereby repealed10
in their entirety.11
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Gary Smith HB No. 548
Abstract: Provides for search, seizure, and forfeiture of alcoholic beverages of high and
low content and tobacco products.
Present law provides for the search, seizure, and forfeiture of alcoholic beverages of high
content.
Proposed law provides for the search, seizure, and forfeiture of alcoholic beverages of high
and low content and tobacco products.
Proposed law authorizes the commissioner of alcohol and tobacco control or his
commissioned agent to search all places of storage except a private residence and all means
of transportation, other than a common carrier, when there is probable cause to believe an
alcoholic beverage or tobacco product is being or has been transported without the required
tax being paid.
Proposed law provides that no place, other than a place open to the public, shall be searched
except by an officer named in a search warrant issued by a competent court having the power
of a committing magistrate and provides for requirements of the warrant.
Proposed law authorizes the commissioner or his agent to seize products illegally possessed
in order to secure them for trial, and requires that the property be appraised at its usual and
ordinary retail price and to deliverer to the possessor of the property a receipt showing the
fact of seizure.
Proposed law provides for summary process of the proceeding in forfeiture directed against
the owner of the articles seized, demanding the forfeiture, destruction, or sale of the property HLS 11RS-420 ORIGINAL
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and provides for service of process depending on whether the owner is a resident of the state
or is out of state or unknown.
Proposed law provides for judgment by the court maintaining the seizure and declaring the
forfeiture of the seized property and ordering the destruction or sale and disposal of the
property.
Proposed law requires the seized property to be destroyed if it is contraband per se.
Proposed law authorizes the court to sale the non-perishable property at a nonjudicial public
sale or auction in certain cases.
Proposed law authorizes the commissioner, if any seized property is perishable, to petition
a court of competent jurisdiction to order the sale of any perishable property at a nonjudicial
public sale or auction, if the court concludes that such a sale will probably result in a bid
greater than the cost of the sale.
Proposed law requires all monies, proceeds, funds, or other fruits of any such nonjudicial
public sale or auction to be placed in an escrow account maintained by and in the name of
the office of alcohol and tobacco control and upon entry of a final judgement to be placed
in the Louisiana Office of Alcohol and Tobacco Officers Fund.
Proposed law provides for definitions.
Proposed law provides for procedures for a person who claims an existing privilege on any
seized property and provides for release of the property upon the furnishing of a bond with
security in a sum not less than double the appraised value of the goods seized but not less
than $50.
Proposed law authorizes the commissioner to waive any proceedings for the forfeiture of the
property if he finds that the violation of the law for which the goods were seized was
unintentional or without intention to defraud the state of its revenue, but requires the
offender to pay double the amount of tax to which the seized beverages are subject.
Proposed law prohibits a person from refusing to allow the commissioner or his agent to
make a full inspection of any place of business where alcoholic beverages or tobacco
products are kept or sold.
(Adds R.S. 26:21 - 28; Repeals R.S. 26:370-375 and 309.1)