TITLE 3 ALCOHOLIC BEVERAGES

Section 2. State Administration and Enforcement, 3-2-1 through 3-2-36.

ARTICLE 2 ENFORCEMENT

3-2-35. Seizure of contraband by commissioner and agents; proceedings upon seizure; hearing on entitlement to seized items; appeals; disposition of items upon which taxes have been paid.

The commissioner and his agents shall seize and take possession of any contraband found in the possession of any person in violation of this title.
Upon seizure, the commissioner or his agent shall give a receipt to the person from whom the contraband property was seized, if known, identifying the property seized and indicating from whom seized and the place of seizure.
A copy of the receipt shall be:
1. Filed in the office of the commissioner and shall be a public record open to public inspection; and
2. Posted at the courthouse of the county in which the contraband was seized.
Any person desiring to make claim to the contraband property shall file a claim with the commissioner at his office in Atlanta within ten days from the day of seizure. The commissioner, within 30 days of receipt of any such claim, shall afford the claimant a hearing in which to show his entitlement to the seized items. The burden of proof at such hearing shall be upon the claimant to establish his claim to the items seized and to show compliance with or justification for noncompliance with this Code section. The commissioner shall enter a written order granting or denying the claim within 30 days from the date of the hearing.
An appeal from the commissioner's order may be taken to the Superior Court of Fulton County by filing with the commissioner, within 15 days from the date of the decision, a notice of appeal to the Superior Court of Fulton County. The appeal shall be based upon the record made before the commissioner; and the commissioner, upon the filing of a notice of appeal, shall transmit the record and appropriate documents to the superior court within 30 days from the date of the filing of notice of appeal. The superior court shall review the record for errors of law, violation of constitutional or statutory provisions, violation of the statutory authority of the agency, lawfulness of the procedure, lack of any evidence to support the decision, and arbitrariness and abuse of discretion. However, the court shall not substitute its judgment for that of the hearing officer as to the weight of evidence on questions of fact.
All alcoholic beverages upon which the taxes have been paid to either this state or any other state shall be disposed of as follows:
1. In the case of malt beverage, the seized goods shall be destroyed by the commissioner or his authorized agent;
2. In the case of wine, the seized goods shall be sold by the commissioner at public sale, except that, where seized wine is determined by the commissioner to be unfit for human consumption, it shall be destroyed;
3. In the case of distilled spirits, the seized goods shall be sold by the commissioner at public sale, except that, where seized distilled spirits are determined by the commissioner to be unfit for human consumption, the distilled spirits shall be destroyed.
This Code section shall not apply to unlawfully manufactured alcoholic beverages.

(Code 1933, § 5A-356, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 16; Ga. L. 1982, p. 3, § 3.)

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Cross references.

- Seizure and disposition as contraband of cigars and cigarettes on which taxes not paid or on which stamps do not appear, § 48-11-9.

JUDICIAL DECISIONS

Ga. L. 1937-38, Ex. Sess., p. 103 (see now subsection (d)) is construed to allow claims by a party to the proceedings, as well as by third parties, since a contrary construction would have the effect of denying remedy to such party, thereby rendering the subsection unconstitutional. Allen v. Giddens, 118 Ga. App. 755, 165 S.E.2d 606 (1968) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Procedure for contesting seizure.

- The sole statutory provision for contesting seizure of contraband beer under Ga. L. 1937-38, Ex. Sess., p. 103 (see now subsection (a) of O.C.G.A. § 3-2-35), is filing of claim pursuant to Ga. L. 1937-38, Ex. Sess., p. 103 (subsection (d) of § 3-3-25), which is to be tried in superior court as other claims. Allen v. Giddens, 118 Ga. App. 755, 165 S.E.2d 606 (1968) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Procedural irregularities not cause for suppression of evidence.

- When executing officers gave to the defendant an inventory of items seized, their failure to deliver a similar inventory to the magistrate issuing the warrant as required by Ga. L. 1966, p. 567 (see now O.C.G.A. § 17-5-2), and a return thereof on a warrant as required by Ga. L. 1966, p. 567 (see now O.C.G.A. § 17-5-29), and a delivery to the sheriff of items seized and a report to the commissioner as required by Ga. L. 1937-38, Ex. Sess., p. 103 (O.C.G.A. § 3-2-35), was not cause for suppression of the evidence. Holloway v. State, 134 Ga. App. 498, 215 S.E.2d 262 (1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Delaying the sending of receipt.

- Since there is no time requirement under Ga. L. 1937-38, Ex. Sess., p. 103 (see now subsection (b) of O.C.G.A. § 3-2-35), there is no harmful error in delaying the sending of the receipt for a reasonable period of time, until after the prosecution of the case has run its course, though the better practice would be to send it immediately. Cowart v. State, 134 Ga. App. 757, 216 S.E.2d 350 (1975) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

Requisite evidence for seizure of beer.

- Beer should not be seized unless there is some evidence that the person is selling it, is offering it for sale, or is holding it for purpose of sale. 1960-61 Op. Att'y Gen. p. 285 (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, § 547. 45 Am. Jur. 2d, Intoxicating Liquors, §§ 371 et seq., 443 et seq. 68 Am. Jur. 2d, Searches and Seizures, § 134.

C.J.S.

- 48 C.J.S., Intoxicating Liquors, §§ 47, 266. 48A C.J.S., Intoxicating Liquors, §§ 365 et seq., 386 et seq., 400.

ALR.

- Constitutionality of statute providing for confiscation or destruction, without notice, of intoxicating liquors, and vehicles or other property used in connection with same, 45 A.L.R. 93.

Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 124 A.L.R. 288.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

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