5353 Tobacco product vending machine forfeiture proceedings

(a) The proceedings for the forfeiture of any tobacco product vending machine in which are found untaxed tobacco products shall be in rem. The State shall be the plaintiff and the property the defendant. A petition shall be filed in the Superior Court of the county in which the machine was found, verified by the oath or affirmation of any tobacco product tax-enforcement officer or other person. The petition shall contain the following:

(1) A description of the machine seized;

(2) A statement of the time when and place where seized;

(3) The name and address of the owner, if known;

(4) The name and address of the person in possession, if known;

(5) A statement of the circumstances under which the machine was found and the number and a description of the unstamped tobacco products found therein; and

(6) A prayer for an order forfeiting the machine to the State, unless cause be shown to the contrary.

(b) A copy of the petition shall be served personally on the owner if the owner can be found within the State, or upon the person in possession at the time of the seizure. The copy shall have endorsed thereon a notice substantially similar to the following:

"To the claimant of the within tobacco product vending machine: You are required to file an answer to this petition setting forth your title in, and right to possession of, said machine within 20 days from the service hereof, and you are also notified that if you fail to file said answer, a decree of forfeiture will be entered against said machine."

This notice shall be signed by the Secretary of Finance or the Attorney General or a Deputy Attorney General.

(c) If the owner of the machine is unknown or outside the State, and there was no person in possession of the machine when seized, or the person in possession cannot be found within the State, a copy of the petition shall be sent by registered or certified mail, return receipt requested, to the person's last known address, if any, and notice of the petition shall also be given by an advertisement in 1 newspaper of general circulation published in the county where the machine was seized, once a week for 2 successive weeks. No other advertisement of any sort shall be necessary, any other law to the contrary notwithstanding. The notice shall contain a statement of the seizure of the machine with a description thereof, the place and date of seizure and shall direct any claimants thereof to file a claim therefor, on or before a date given in the notice, which shall not be less than 10 days from the date of the last publication.

(d) Thirty days after the filing of any claim for the machine setting forth a right of possession thereof, the case shall be deemed at issue and a time shall be fixed for the hearing thereof.

(e) At the time of the hearing, if the State shall produce evidence that the machine in question was found to contain unstamped tobacco products, the burden shall be upon the claimant to show:

(1) That the claimant is the owner of the machine and

(2) That all tobacco products found in the machine at the time of seizure did contain the proper amounts of Delaware tobacco product tax stamps.

(f) In the event the claimant shall prove by competent evidence, to the satisfaction of the Court, that the machine did not contain unstamped tobacco products, the Court shall order the machine returned to the claimant, otherwise the Court shall order it forfeited to the State.