Tennessee § 57-9-202 - Procedure for seizing contraband property — Claims — Hearings.

§ 57-9-202. Procedure for seizing contraband property — Claims — Hearings.

In all cases of seizure of any alcoholic beverages or other property subject to forfeiture under the provisions hereof, the officer or other person making the seizure shall proceed as follows: The officer or other person shall deliver to the person, if any, found in possession of such property, a receipt showing a general description of the seized goods, the reason for the seizure, the procedure by which recovery of the goods may be sought, including the time period in which a claim for recovery must be presented, and the consequences of failing to file within the time period. If the person found in possession of the seized property is not the sole unencumbered owner of same, the commission shall make a reasonable effort to furnish a copy of the receipt to the owner and/or lienholder. A copy of the receipt shall be filed in the office of the commission and shall be open to the public for inspection; All such property seized and confiscated under this part may be designated by the director for use by the commission for any period of time or shall be sold at public sale by the commissioner of general services when the same has been turned over to the commissioner by the commission as now authorized by law. Any person claiming any property so seized as contraband goods may, within fifteen (15) days from the date of receipt of notification 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, file with the commission at Nashville a claim in writing, requesting a hearing and stating the person's interest in the articles seized. An indigent person may file a claim in forma pauperis by filing with the claim an affidavit stating that the indigent person is unable to bear the cost of the proceeding. The commission shall set a date for hearing within fifteen (15) days from the day the claim is filed. The commission is empowered to subpoena witnesses and compel their attendance at hearings authorized hereunder. All parties to the proceeding, including the person claiming such property, shall have the right to have subpoenas issued by the commission to compel the attendance of all witnesses deemed by such parties to be necessary for a full and complete hearing. 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. At each hearing authorized in subsection (b), the state shall have the burden of proving by a preponderance of the evidence that the seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture, under this part, and failure to carry the burden of proof shall operate as a bar to any forfeiture hereunder. In the event the ruling of the commission is favorable to the claimant, the commission shall deliver to the claimant the alcoholic beverages or property so seized. If the ruling of the commission is adverse to the claimant, the commission shall proceed as to such contraband goods in accordance with the foregoing provisions hereof. The expenses of storage, transportation, etc., shall be adjudged as a part of the cost of the proceeding in such manner as the commission shall fix. Whenever, in any proceeding under this part, a claim is filed for any 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: The claimant has an interest in such property which the claimant acquired in good faith; and The claimant had at no time any knowledge or reason to believe that it was being or would be used in the violation of the laws of the United States or of the state of Tennessee relating to liquor. 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 such claimant has an interest in such property which such claimant acquired in good faith. An interest which 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 which 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: 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 The holder has failed to reasonably supervise or monitor the activities of the officer, employee or agent. In the event the interest of the owner is forfeited as provided in subdivision (e)(1) and the interest of the holder of a security interest is not forfeited as provided in subdivision (e)(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. 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. Pending any proceeding to recover a vehicle, aircraft or boat seized hereunder, the commission may order delivery thereof to any claimant who shall establish the right to immediate possession thereof, and who shall execute, with one (1) or more sureties approved by the commission, and deliver to the commission, a bond in favor of the state of Tennessee for the payment of a sum double the appraised value thereof as of the time of the hearing; and conditioned further that, if the 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 vehicle, aircraft or boat. The commission may personally hold such hearings as it may deem proper. In addition thereto, the commission is authorized to designate a hearing officer who may hold such hearings in the place and in the absence of the commission. Such hearing officer shall make findings of fact, conclusions of law, and proposed order based thereon. If the commission concurs, it shall issue the order; or it may, upon review of the record, make such findings, conclusions and issue such order as, in its discretion, the record justifies. At all hearings provided for herein, the commission 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 therefor, and upon paying the reasonable cost thereof to be fixed by the commission. Acts 1941, ch. 119, § 2; 1947, ch. 128, § 1; C. Supp. 1950, § 6648.25 (Williams, § 6648.27); Acts 1955, ch. 347, § 6; impl. am. Acts 1959, ch. 9, §§ 5, 14; Acts 1959, ch. 301, § 3; 1959, ch. 302, § 1; impl. am. Acts 1961, ch. 97, § 5; Acts 1963, ch. 258, § 1; 1967, ch. 368, § 1; 1970, ch. 451, § 3; impl. am. Acts 1972, ch. 543, § 7; Acts 1973, ch. 357, §§ 2-4; T.C.A. (orig. ed.), § 57-623; Acts 1985, ch. 76, § 3; 1990, ch. 1037, §§ 2, 5. Cross-References. Procedure for confiscation of property in cases of seizure of narcotic drugs or marijuana, § 53-11-201 . Procedure for seizing contraband in cases of seizure of tobacco products, § 67-4-1021 . Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, §§ 26, 28. Law Reviews. An Examination of the Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339. NOTES TO DECISIONS 1. Construction — Effect of Federal Decisions. 2. Confiscation — Necessity of Compliance With Prescribed Conditions. 3. —Facts Excusing Failure to Comply With Conditions. 4. —Return on Acquittal. 5. Void Sale by Commissioner. 6. Attack on Judgment of Commissioner. 7. Inquiry by Claimant. 8. Presumption of Knowledge by Claimant. 9. Reclaiming Confiscated Car. 1. Construction — Effect of Federal Decisions. While the holdings of the federal courts are not binding on the state Supreme Court in construing this section, they were strongly persuasive where the federal statute was identical to this statute. Dolen v. State, 181 Tenn. 31, 178 S.W.2d 387, 1944 Tenn. LEXIS 342 (1944). 2. Confiscation — Necessity of Compliance With Prescribed Conditions. The procedure laid down in this section constitutes the conditions under which the confiscation is accomplished, and the proceeding is conditioned upon compliance with the conditions prescribed. Wells v. McCanless, 184 Tenn. 293, 198 S.W.2d 641, 1947 Tenn. LEXIS 379 (1947). Seizure of car on charge of use in transporting unstamped liquors did not result in forfeiture where statutory procedure for forfeiture was not followed. Wells v. McCanless, 184 Tenn. 293, 198 S.W.2d 641, 1947 Tenn. LEXIS 379 (1947). Where the commissioner did not comply with the conditions under which alone the confiscation of the petitioner's automobile could be accomplished, in that the petitioner denied the hearing to which the petitioner was entitled prior to a sale, the confiscation of the automobile did not occur and title remained in the petitioner. Brooks v. McCoy, 192 Tenn. 586, 241 S.W.2d 579, 1951 Tenn. LEXIS 305 (1951). Where sheriff upon seizure of car containing unstamped liquor, failed to issue receipt for property taken to person found in possession and commissioner failed to advertise property taken, and sheriff turned car over to federal authorities who 64 days later turned the car over to the commissioner, the latter was not entitled to confiscate car since sheriff acted for federal authorities and not as agent of commissioner, and statutory procedure required for confiscation had not been followed. Range Pontiac Sales Co. v. Dickinson, 195 Tenn. 228, 258 S.W.2d 770, 1953 Tenn. LEXIS 327 (1953). 3. —Facts Excusing Failure to Comply With Conditions. Where arrest of defendant was unlawful due to search of automobile without a warrant but defendant made no objection to testimony by state officers, and testified that the defendant transported whiskey in question at time of seizure and that the defendant owned the car in which whiskey was transported, an order confiscating the property by the commissioner was valid. Dickinson v. Ross, 196 Tenn. 162, 264 S.W.2d 800, 1954 Tenn. LEXIS 358 (1954). 4. —Return on Acquittal. Where the alcoholic beverage commission seized contraband liquor from a defendant charged with illegal possession and the charge was nolle prossed, the court held that a jury verdict of acquittal was not binding on the court or the commission with regard to the disposition of the confiscated liquor, that under T.C.A. § 57-3-411 and related statutes, a circuit court had no authority to return the liquor to the defendant and that the liquor had to be sold as contraband in accordance with T.C.A. §§ 57-9-201 — 57-9-204 . Alcoholic Beverage Com. v. Simmons, 512 S.W.2d 585, 1973 Tenn. Crim. App. LEXIS 225 (Tenn. Crim. App. 1973). 5. Void Sale by Commissioner. Sale of car by commissioner after denial of hearing to owner of car was void. Brooks v. McCoy, 192 Tenn. 586, 241 S.W.2d 579, 1951 Tenn. LEXIS 305 (1951). 6. Attack on Judgment of Commissioner. The rules governing collateral attacks on the judgments of courts of general jurisdiction are not applicable to a judgment of the commissioner. Brooks v. McCoy, 192 Tenn. 586, 241 S.W.2d 579, 1951 Tenn. LEXIS 305 (1951). 7. Inquiry by Claimant. The requirement of this section that a person selling a car or otherwise acquiring a claim against it make the specified inquiry to the designated officials before the seller shall be entitled to recover such car where it is seized under the provisions of the statute is mandatory. Dolen v. State, 181 Tenn. 31, 178 S.W.2d 387, 1944 Tenn. LEXIS 342 (1944); McQueen v. McCanless, 182 Tenn. 453, 187 S.W.2d 630, 1945 Tenn. LEXIS 241 (1945). Lienors of automobiles confiscated when the drivers were found to be transporting unstamped liquor were not entitled to repossession of the automobiles where they had failed to make the inquiry of the designated officials required by this section. Dolen v. State, 181 Tenn. 31, 178 S.W.2d 387, 1944 Tenn. LEXIS 342 (1944). Holder of chattel mortgage on truck confiscated because it was being used for transportation of unstamped liquor was not entitled to recover the truck where the holder only made inquiry of constable and did not inquire of sheriff or other principal law enforcement officer. McQueen v. McCanless, 182 Tenn. 453, 187 S.W.2d 630, 1945 Tenn. LEXIS 241 (1945). It is not necessary that claimant make inquiry at the offices of each of the law enforcement officials listed in the statute since the listing of such officials is disjunctive rather than conjunctive. General Motors Acceptance Corp. v. Atkins, 204 Tenn. 700, 325 S.W.2d 270, 1959 Tenn. LEXIS 329 (1959). Confiscated automobile was properly restored to purchaser of conditional sales notes and conditional sales contract where purchaser made inquiry of federal alcoholic tax unit and was informed that neither buyer nor her husband had any record of liquor law violations, even though purchaser made no inquiry of other law enforcement agencies listed in the statute. General Motors Acceptance Corp. v. Atkins, 204 Tenn. 700, 325 S.W.2d 270, 1959 Tenn. LEXIS 329 (1959). Where automobile was purchased in Kentucky under conditional sales contract by Tennessee residents, and Kentucky statute did not require inquiry as to purchaser's reputation for dealing in contraband liquor, this section would not preclude Kentucky finance company from satisfying its lien where automobile was confiscated in Tennessee for violation of Tennessee liquor laws. Boyd v. Interstate Acceptance Corp., 205 Tenn. 458, 326 S.W.2d 911, 1959 Tenn. LEXIS 383 (1959). Where purchaser of conditional sales contract relied on car dealer's statements as to whether the purchaser of the automobile was engaged in the illicit liquor business but did not make any investigation of its own, such investigation does not comply with the statute. Boyd v. General Motors Acceptance Corp., 205 Tenn. 658, 330 S.W.2d 13, 1959 Tenn. LEXIS 405 (1959). 8. Presumption of Knowledge by Claimant. Wife of reputed bootlegger, who allowed husband's driver to have key to and unlimited use of car which she sought to recover after seizure, was subject to presumption against her contention that she had no knowledge or reason to believe that her car was being or would be used in violation of the liquor laws. McCanless v. Pearson, 190 Tenn. 123, 228 S.W.2d 84, 1945 Tenn. LEXIS 195 (1945). 9. Reclaiming Confiscated Car. In proceeding for forfeiture where person seeks return of car the state has the burden of proving the affirmative allegations upon which the right to forfeiture exists, and where such right is not proved it does not matter that the claimant cannot prove the matter required by this section. MacFarland v. Wofford, 211 Tenn. 309, 364 S.W.2d 914, 1963 Tenn. LEXIS 351 (1963).