AN
ACT Relating to the seizure and forfeiture of gambling-related property; and
amending RCW 9.46.231.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
9.46.231 and 1994 c 218 s 7 are each amended to read as follows:
(1)
The following are subject to seizure and forfeiture and no property right
exists in them:
(a)
All gambling devices as defined in this chapter;
(b)
All furnishings, fixtures, equipment, and stock, including without limitation
furnishings and fixtures adaptable to nongambling uses and equipment and stock
for printing, recording, computing, transporting, or safekeeping, used in
connection with professional gambling or maintaining a gambling premises;
(c)
All conveyances, including aircraft, vehicles, or vessels, that are used, or
intended for use, in any manner to facilitate the sale, delivery, receipt, or
operation of any gambling device, or the promotion or operation of a
professional gambling activity, except that:
(i)
A conveyance used by any person as a common carrier in the transaction of
business as a common carrier is not subject to forfeiture under this section
unless it appears that the owner or other person in charge of the conveyance is
a consenting party or privy to a violation of this chapter;
(ii)
A conveyance is not subject to forfeiture under this section by reason of any
act or omission established by the owner thereof to have been committed or
omitted without the owner's knowledge or consent;
(iii)
A forfeiture of a conveyance encumbered by a bona fide security interest is
subject to the interest of the secured party if the secured party neither had
knowledge of nor consented to the act or omission; and
(iv)
If the owner of a conveyance has been arrested under this chapter the
conveyance in which the person is arrested may not be subject to forfeiture
unless it is seized or process is issued for its seizure within ten days of the
owner's arrest;
(d)
All books, records, and research products and materials, including formulas,
microfilm, tapes, and electronic data that are used, or intended for use, in
violation of this chapter;
(e)
All moneys, negotiable instruments, securities, or other tangible or intangible
property of value at stake or displayed in or in connection with professional
gambling activity or furnished or intended to be furnished by any person to
facilitate the promotion or operation of a professional gambling activity;
(f)
All tangible or intangible personal property, proceeds, or assets acquired in
whole or in part with proceeds traceable to professional gambling activity and
all moneys, negotiable instruments, and securities used or intended to be used
to facilitate any violation of this chapter. A forfeiture of money, negotiable
instruments, securities, or other tangible or intangible property encumbered by
a bona fide security interest is subject to the interest of the secured party
if, at the time the security interest was created, the secured party neither
had knowledge of nor consented to the act or omission. Personal property may
not be forfeited under this subsection (1)(f), to the extent of the interest of
an owner, by reason of any act or omission that that owner establishes was
committed or omitted without the owner's knowledge or consent; and
(g)
All real property, including any right, title, and interest in the whole of any
lot or tract of land, and any appurtenances or improvements that:
(i)
Have been used with the knowledge of the owner for the manufacturing,
processing, delivery, importing, or exporting of any illegal gambling
equipment, or operation of a professional gambling activity that would
constitute a felony violation of this chapter; or
(ii)
Have been acquired in whole or in part with proceeds traceable to a
professional gambling activity, if the activity is not less than a class C
felony.
Real
property forfeited under this chapter that is encumbered by a bona fide
security interest remains subject to the interest of the secured party if the
secured party, at the time the security interest was created, neither had
knowledge of nor consented to the act or omission. Property may not be
forfeited under this subsection, to the extent of the interest of an owner, by
reason of any act or omission committed or omitted without the owner's
knowledge or consent.
(2)(a)
A law enforcement officer of this state may seize real or personal property
subject to forfeiture under this chapter upon process issued by any superior
court having jurisdiction over the property. Seizure of real property includes
the filing of a lis pendens by the seizing agency. Real property seized under
this section may not be transferred or otherwise conveyed until ninety days
after seizure or until a judgment of forfeiture is entered, whichever is later,
but real property seized under this section may be transferred or conveyed to
any person or entity who acquires title by foreclosure or deed in lieu of
foreclosure of a bona fide security interest.
(b)
Seizure of personal property without process may be made if:
(i)
The seizure is incident to an arrest or a search under a search warrant or an
inspection under an administrative inspection warrant;
(ii)
The property subject to seizure has been the subject of a prior judgment in
favor of the state in a criminal injunction or forfeiture proceeding based upon
this chapter;
(iii)
A law enforcement officer has probable cause to believe that the property is
directly or indirectly dangerous to health or safety; or
(iv)
The law enforcement officer has probable cause to believe that the property was
used or is intended to be used in violation of this chapter.
(3)
In the event of seizure under subsection (2) of this section, proceedings for
forfeiture are deemed commenced by the seizure. The law enforcement agency
under whose authority the seizure was made shall cause notice to be served
within fifteen days following the seizure on the owner of the property seized
and the person in charge thereof and any person having any known right or
interest therein, including any community property interest, of the seizure and
intended forfeiture of the seized property. Service of notice of seizure of
real property must be made according to the rules of civil procedure. However,
the state may not obtain a default judgment with respect to real property
against a party who is served by substituted service absent an affidavit
stating that a good faith effort has been made to ascertain if the defaulted
party is incarcerated within the state, and that there is no present basis to
believe that the party is incarcerated within the state. Notice of seizure in
the case of property subject to a security interest that has been perfected by
filing a financing statement in accordance with chapter 62A.9 RCW, or a
certificate of title, must be made by service upon the secured party or the
secured party's assignee at the address shown on the financing statement or the
certificate of title. The notice of seizure in other cases may be served by
any method authorized by law or court rule including but not limited to service
by certified mail with return receipt requested. Service by mail is deemed
complete upon mailing within the fifteen-day period following the seizure.
(4)
If no person notifies the seizing law enforcement agency in writing of the
person's claim of ownership or right to possession of items specified in
subsection (1) (((c), (e), (f), or (g))) of this section within
forty-five days of the seizure in the case of personal property and ninety days
in the case of real property, the item seized is deemed forfeited. The
community property interest in real property of a person whose spouse committed
a violation giving rise to seizure of the real property may not be forfeited if
the person did not participate in the violation.
(5)
If any person notifies the seizing law enforcement agency in writing of the
person's claim of ownership or right to possession of items specified in
subsection (1) (((b), (c), (d), (e), (f), or (g))) of this section
within forty-five days of the seizure in the case of personal property and
ninety days in the case of real property, the person or persons must be
afforded a reasonable opportunity to be heard as to the claim or right. The
hearing must be before the chief law enforcement officer of the seizing agency
or the chief law enforcement officer's designee, except if the seizing agency
is a state agency as defined in RCW 34.12.020(4), the hearing must be before
the chief law enforcement officer of the seizing agency or an administrative
law judge appointed under chapter 34.12 RCW, except that any person asserting a
claim or right may remove the matter to a court of competent jurisdiction.
Removal of any matter involving personal property may only be accomplished
according to the rules of civil procedure. The person seeking removal of the
matter must serve process against the state, county, political subdivision, or
municipality that operates the seizing agency, and any other party of interest,
in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the
person seeking removal has notified the seizing law enforcement agency of the
person's claim of ownership or right to possession. The court to which the
matter is to be removed must be the district court if the aggregate value of
personal property is within the jurisdictional limit set forth in RCW
3.66.020. A hearing before the seizing agency and any appeal therefrom must be
under Title 34 RCW. In a court hearing between two or more claimants to the
article or articles involved, the prevailing party is entitled to a judgment for
costs and reasonable attorneys' fees. In cases involving personal property,
the burden of producing evidence is upon the person claiming to be the lawful
owner or the person claiming to have the lawful right to possession of the
property. In cases involving property seized under subsection (1)(a) of
this section, the only issues to be determined by the tribunal are whether the
item seized is a gambling device, and whether the device is an antique device
as defined by RCW 9.46.235. In cases involving real property, the burden
of producing evidence is upon the law enforcement agency. The burden of proof
that the seized real property is subject to forfeiture is upon the law
enforcement agency. The seizing law enforcement agency shall promptly return the
article or articles to the claimant upon a final determination by the
administrative law judge or court that the claimant is the present lawful owner
or is lawfully entitled to possession thereof of items specified in subsection
(1) (((b), (c), (d), (e), (f), or (g))) of this section.
(6)
If property is forfeited under this chapter the seizing law enforcement agency
may:
(a)
Retain it for official use or upon application by any law enforcement agency of
this state release the property to the agency for training or use in enforcing
this chapter;
(b)
Sell that which is not required to be destroyed by law and which is not harmful
to the public; or
(c)
Destroy any articles that may not be lawfully possessed within the state of
Washington, or that have a fair market value of less than one hundred dollars.
(7)(a)
If property is forfeited, the seizing agency shall keep a record indicating the
identity of the prior owner, if known, a description of the property, the
disposition of the property, the value of the property at the time of seizure,
and the amount of proceeds realized from disposition of the property. The net
proceeds of forfeited property is the value of the forfeitable interest in the
property after deducting the cost of satisfying any bona fide security interest
to which the property is subject at the time of seizure, and in the case of
sold property, after deducting the cost of sale, including reasonable fees or
commissions paid to independent selling agents.
(b)
Each seizing agency shall retain records of forfeited property for at least
seven years.
(((c)
Each seizing agency shall file a report including a copy of the records of
forfeited property with the state treasurer the calendar quarter after the end
of the fiscal year.
(d)
The annual report need not include a record of forfeited property that is still
being held for use as evidence during the investigation or prosecution of a
case or during the appeal from a conviction.))
(8)
The seizing law enforcement agency shall retain forfeited property and net
proceeds exclusively for the expansion and improvement of gambling-related law
enforcement activity. Money retained under this section may not be used to
supplant preexisting funding sources.
(9)
Gambling devices that are possessed, transferred, sold, or offered for sale in
violation of this chapter are contraband and must be seized and summarily
forfeited to the state. Gambling equipment that is seized or comes into the
possession of a law enforcement agency, the owners of which are unknown, are
contraband and must be summarily forfeited to the state.
(10)
Upon the entry of an order of forfeiture of real property, the court shall
forward a copy of the order to the assessor of the county in which the property
is located. The superior court shall enter orders for the forfeiture of real
property, subject to court rules. The seizing agency shall file such an order
in the county auditor's records in the county in which the real property is
located.
(11)(a)
A landlord may assert a claim against proceeds from the sale of assets seized
and forfeited under subsection (6)(b) of this section, only if:
(i)
A law enforcement officer, while acting in his or her official capacity,
directly caused damage to the complaining landlord's property while executing a
search of a tenant's residence; and
(ii)
The landlord has applied any funds remaining in the tenant's deposit, to which
the landlord has a right under chapter 59.18 RCW, to cover the damage directly
caused by a law enforcement officer before asserting a claim under this
section.
(A)
Only if the funds applied under (a)(ii) of this subsection are insufficient to
satisfy the damage directly caused by a law enforcement officer, may the
landlord seek compensation for the damage by filing a claim against the
governmental entity under whose authority the law enforcement agency operates
within thirty days after the search; and
(B)
Only if the governmental entity denies or fails to respond to the landlord's
claim within sixty days of the date of filing, may the landlord collect damages
under this subsection by filing within thirty days of denial or the expiration
of the sixty-day period, whichever occurs first, a claim with the seizing law
enforcement agency. The seizing law enforcement agency shall notify the
landlord of the status of the claim by the end of the thirty-day period. This
section does not require the claim to be paid by the end of the sixty-day or
thirty-day period.
(b)
For any claim filed under (a)(ii) of this subsection, the law enforcement
agency shall pay the claim unless the agency provides substantial proof that
the landlord either:
(i)
Knew or consented to actions of the tenant in violation of this chapter; or
(ii)
Failed to respond to a notification of the illegal activity, provided by a law
enforcement agency within seven days of receipt of notification of the illegal
activity.
(12)
The landlord's claim for damages under subsection (11) of this section may not
include a claim for loss of business and is limited to:
(a)
Damage to tangible property and clean-up costs;
(b)
The lesser of the cost of repair or fair market value of the damage directly
caused by a law enforcement officer;
(c)
The proceeds from the sale of the specific tenant's property seized and
forfeited under subsection (6)(b) of this section; and
(d)
The proceeds available after the seizing law enforcement agency satisfies any
bona fide security interest in the tenant's property and costs related to sale
of the tenant's property as provided by subsection (7)(a) of this section.
(13)
Subsections (11) and (12) of this section do not limit any other rights a
landlord may have against a tenant to collect for damages. However, if a law
enforcement agency satisfies a landlord's claim under subsection (11) of this
section, the rights the landlord has against the tenant for damages directly
caused by a law enforcement officer under the terms of the landlord and
tenant's contract are subrogated to the law enforcement agency.
(14) Liability is not imposed by this section upon any
authorized state, county, or municipal officer, including a commission special
agent, in the lawful performance of his or her duties.
