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92nd General Assembly

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Public Act 92-0743

SB2211 Enrolled                                LRB9212100SMdv

    AN ACT concerning taxation.

    Be it  enacted  by  the  People  of  the  State  of  Illinois,
represented in the General Assembly:

    Section 5.  The Tobacco  Products  Tax  Act  of  1995  is
amended  by adding Sections 10-55, 10-56, 10-57, and 10-58 as
follows:

    (35 ILCS 143/10-55 new)
    Sec. 10-55. Arrest; search and seizure  without  warrant.
Any duly authorized employee of the Department (i) may arrest
without  warrant any person committing in his or her presence
a violation of any of the provisions of this  Act,  (ii)  may
without a search warrant inspect all tobacco products located
in  any  place  of  business,  (iii)  may  seize  any tobacco
products in accordance with the provisions of this  Act,  and
(iv)  may  seize  any  vending  device in which those tobacco
products are found. The tobacco products and vending  devices
so  seized  are  subject  to  confiscation  and forfeiture as
provided in Sections 10-56 through 10-58.

    (35 ILCS 143/10-56 new)
    Sec. 10-56. Seizure and  forfeiture.  After  seizing  any
tobacco  products  or vending devices, as provided in Section
10-55, the Department  must  hold  a  hearing  and  determine
whether  the distributor or retailer was properly licensed to
sell the tobacco products at the time of their seizure by the
Department. The Department shall give not less than 20  days'
notice  of  the time and place of the hearing to the owner of
the property, if the owner is known, and also to  the  person
in whose possession the property was found, if that person is
known and if the person in possession is not the owner of the
property.  If  neither the owner nor the person in possession
of  the  property  is  known,  the  Department   must   cause
publication  of  the time and place of the hearing to be made
at least once in each week for  3  weeks  successively  in  a
newspaper  of  general  circulation  in  the county where the
hearing is to be held.
    If,  as  the  result  of  the  hearing,  the   Department
determines  that the distributor or retailer was not properly
licensed at the time the tobacco products  were  seized,  the
Department must enter an order declaring the tobacco products
or vending devices confiscated and forfeited to the State, to
be  held  by the Department for disposal by it as provided in
Section 10-58. The Department must give notice of  the  order
to the owner of the property, if the owner is known, and also
to  the person in whose possession the property was found, if
that person is known and if the person in possession  is  not
the  owner  of  the  property.  If  neither the owner nor the
person in possession of the property is known, the Department
must cause publication of the order to be made at least  once
in  each  week  for  3  weeks  successively in a newspaper of
general circulation in the county where the hearing was held.

    (35 ILCS 143/10-57 new)
    Sec. 10-57. Search warrant; issuance and return; process;
confiscation of property; forfeitures. If a peace officer  of
this  State or any duly authorized officer or employee of the
Department has reason to believe that any violation  of  this
Act has occurred and that the person violating the Act has in
that  person's  possession  any  tobacco  products or vending
device containing tobacco products,  that  peace  officer  or
officer or employee of the Department may file or cause to be
filed his or her complaint in writing, verified by affidavit,
with  any  court within whose jurisdiction the premises to be
searched are situated,  stating  the  facts  upon  which  the
belief  is  founded,  the  premises  to  be searched, and the
property to be seized,  and  procure  a  search  warrant  and
execute  that  warrant.  Upon  the  execution  of  the search
warrant, the peace officer, or officer  or  employee  of  the
Department,  executing  the  search  warrant  shall  make due
return of the warrant  to  the  court  issuing  the  warrant,
together  with  an  inventory of the property taken under the
warrant. The court must then issue process against the  owner
of  the  property  if  the owner is known; otherwise, process
must be issued against the person  in  whose  possession  the
property  is  found,  if  that  person  is  known. In case of
inability to serve process upon the owner or  the  person  in
possession of the property at the time of its seizure, notice
of the proceedings before the court must be given in the same
manner  as required by the law governing cases of attachment.
Upon the return of  the  process  duly  served  or  upon  the
posting  or  publishing  of  notice made, as appropriate, the
court or jury, if  a  jury  is  demanded,  shall  proceed  to
determine  whether  or not the property so seized was held or
possessed in violation of this Act. If a violation is  found,
judgment  shall  be  entered  confiscating  the  property and
forfeiting it to the State and ordering its delivery  to  the
Department.  In  addition,  the  court may tax and assess the
costs of the proceedings.
    When any tobacco products  or  any  vending  devices  are
declared  forfeited  to  the  State  by  any  court  and  the
confiscated  and  forfeited  property  is  delivered  to  the
Department,  the  Department  shall sell the property for the
best price  obtainable  and  shall  forthwith  pay  over  the
proceeds of the sale to the State Treasurer.  If the value of
the  property  to  be  sold  at any one time is $500 or more,
however, the property shall be sold only to the  highest  and
best  bidder on terms and conditions, and on open competitive
bidding after public advertisement, in a manner and for terms
as the Department, by rule, may prescribe.
    (35 ILCS 143/10-58 new)
    Sec. 10-58. Sale of forfeited tobacco products or vending
devices.
    (a)  When any tobacco products or any vending devices are
declared  forfeited  to  the  State  by  the  Department,  as
provided in Section 10-55, and when all proceedings  for  the
judicial review of the Department's decision have terminated,
the  Department  shall,  to  the  extent that its decision is
sustained on review, sell the property  for  the  best  price
obtainable  and  shall forthwith pay over the proceeds of the
sale to the State Treasurer. If the value of the property  to
be  sold  at  any  one  time  is  $500  or more, however, the
property shall be sold only to the highest and best bidder on
terms and conditions, and on open competitive  bidding  after
public  advertisement,  in  a  manner  and  for  terms as the
Department, by rule, may prescribe.
    (b)  If no complaint for review, as provided  in  Section
12  of  the  Retailers'  Occupation  Tax  Act, has been filed
within the time required by the  Administrative  Review  Law,
and  if  no  stay  order has been entered under that Law, the
Department shall proceed to sell the property  for  the  best
price obtainable and shall forthwith pay over the proceeds of
the sale to the State Treasurer. If the value of the property
to  be  sold  at  any  one time is $500 or more, however, the
property shall be sold only to the highest and best bidder on
terms and conditions, and on open competitive  bidding  after
public  advertisement,  in  a  manner  and  for  terms as the
Department, by rule, may prescribe.
    (c)  Upon making a sale of tobacco products  as  provided
in  this  Section,  the  Department shall affix a distinctive
stamp to each of the tobacco products so sold indicating that
they are sold under this Section.
    (d)  Notwithstanding the foregoing, any tobacco  products
seized  under this Act may, at the discretion of the Director
of Revenue, be distributed to  any  eleemosynary  institution
within the State of Illinois.

    Section  99.  Effective date.  This Act takes effect upon
becoming law.
    Passed in the General Assembly May 09, 2002.
    Approved July 25, 2002.
    Effective July 25, 2002.

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