(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.9A 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) 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 or domestic partner
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) 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) 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.
(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.
[2008 c 6 § 629; 1997 c 128 § 1; 1994 c 218 § 7.]
NOTES:
Part headings not law -- Severability -- 2008 c 6: See RCW 26.60.900 and 26.60.901.
Effective date -- 1994 c 218: See note following RCW 9.46.010.