§ 26:916 — Suspensions or revocations

A. The commissioner, the secretary, governing authorities of municipalities or parishes, sheriffs, law enforcement authorities, and citizens, in accordance with the procedure below, have the right to have a permittee cited by the commissioner to show cause why his permit or permits should not be suspended or revoked.
B. The commissioner shall have periodic examinations made of the businesses of all persons holding permits under this Chapter. If a violation of the Chapter or of any rule or regulation of the commissioner or the secretary is observed, the commissioner may give the permittee a written warning. If the permittee has been previously warned or if the violation is of a sufficiently serious nature, the commissioner may instruct any agent or employee of the commissioner to prepare and file, upon information and belief based upon the facts in hand, a petition for assessing a fine, or suspension or revocation of the permit, setting forth the facts and circumstances of the violation, and shall thereupon summon the permittee to appear and show cause why the permit should not be suspended or revoked or the fine not assessed.
C. The secretary, parish or municipal governing authorities, sheriffs, and other law enforcement officers may have periodic investigations made of the businesses of all permittees within their respective jurisdictions. If any violation of any provision of this Chapter or of any rule or regulation adopted by the commissioner is observed, such authorities may give the permittee a written warning. If the permittee has been previously warned or if the violation is of a sufficiently serious nature, the authority shall file an affidavit with the commissioner, setting forth the facts and circumstances of the violation. Thereupon, the commissioner shall summon the permittee to appear and show cause why his permit should not be suspended or revoked.
D. Any person may file with the commissioner a sworn petition requesting that a permit be suspended or revoked. When such a petition is received by the commissioner, he shall summon the permittee to appear and show cause why his permit should not be suspended or revoked.
E.(1) No such petition shall be considered by the commissioner unless submitted together with supporting affidavits made on personal knowledge, which shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The commissioner may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
(2) If it appears from the affidavits of the permittee opposing the petition that he cannot present by affidavit facts essential to justify his opposition, the commissioner may suspend or revoke a permit or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(3) If it appears to the satisfaction of the commissioner at any time that any of the affidavits presented pursuant to this Section are presented in bad faith or solely for the purposes of harassment of a dealer and are without merit, the commissioner may order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney fees. Any offending party or attorney may be adjudged guilty of contempt.
F. No permit shall be withheld, suspended, or revoked except for cause as specified in this Chapter. If a person holds more than one permit and only one is suspended or revoked, the commissioner may not suspend or revoke any of his other permits, except for cause as specified in this Chapter.
G. Conviction by a court of competent jurisdiction of any violation of this Chapter is not a condition precedent to the refusal, suspension, or revocation of a permit under this Chapter for a violation of any provision of this Chapter or of any administrative rule. If there has been a previous criminal prosecution for the same or a similar act upon which the refusal, suspension, or revocation of a permit is being considered, evidence of an acquittal in a court of competent jurisdiction is admissible in a proceeding before the commissioner. The commissioner may withhold, suspend, or revoke permits for violations of this Chapter, regardless of any prosecution in the court or as the result of any such prosecution.
H. The designation of a stamping agent shall be subject to termination if a permittee does any of the following:
(1) Fails to provide a report or certification as required by this Chapter, R.S. 13:5061 et seq., or R.S. 47:841 et seq.
(2) Knowingly files an incomplete or inaccurate report or certification.
(3) Fails to pay taxes as provided in R.S. 47:841 et seq.
(4) Fails to sell cigarettes in or into the state pursuant to R.S. 47:843 or sells unstamped cigarettes of a manufacturer or brand family that is not at the time listed on the state directory, or sells, offers or possesses for sale in this state, or imports for personal consumption in this state, cigarettes received, imported, or stamped after receiving notice that the manufacturer or brand family is not on the state directory, except as expressly permitted in R.S. 47:841 et seq.
(5) Purchases or sells cigarettes in violation of the provisions of this Chapter or R.S. 47:841 et seq.
I. In the case of a first violation under Paragraphs (1) or (3) of Subsection H of this Section that was not knowing or intentional, the stamping agent may be entitled to cure the failure within thirty days of being notified of the violation. The designation of a stamping agent that fully cures the failure during the prescribed period shall not be terminated on account of that failure.
J. The designation of a stamping agent may be subject to termination if its similar designation is terminated in any other state based on acts or omissions that would be grounds for designation termination under this Section, unless the stamping agent demonstrates that its designation termination in the other state was terminated without due process. A stamping agent whose designation is terminated under this Subsection shall be eligible for reinstatement upon the earlier date specified by Subsection M of this Section for the omission in question or reinstatement of its license by the other state.
K. The commissioner shall promptly remove any stamping agent whose designation is terminated from the list required by R.S. 26:921(B) and shall publish a notice of the termination on its website and send notice of the termination to all wholesale dealers, the attorney general, and the secretary. The attorney general shall send notice of the termination to all persons listed on the state directory.
(1) Beginning five days following the publication and sending of such notice, no person may sell cigarettes nor purchase cigarettes from the stamping agent whose designation has been terminated.
(2) A stamping agent whose designation has been terminated may, within thirty days from the date of the publication, return any unaffixed stamps to the secretary for a refund equal to the current value of each stamp returned. No refunds shall be issued after thirty days from the date of the publication of the termination.
L.(1) A stamping agent whose designation is terminated shall be removed from the list required by R.S. 26:921(B).
(2) Any person that sells cigarettes to or purchases cigarettes from a terminated stamping agent after the stamping agent has been removed from the directory by R.S. 26:921(B), shall be jointly and severally liable for any taxes applicable to such cigarettes under R.S. 47:841 and for any escrow due on such cigarettes under R.S. 13:5063 during the period of the termination.
M. A stamping agent whose designation is terminated shall be eligible for reinstatement no less than ninety days and no more than three years following date of termination.
N. In addition to any other causes enumerated in this Chapter, the commissioner shall suspend or revoke any permit of any dealer that fails to pay taxes due to the state.

Legislative History

Acts 1997, No. 1370, §2, eff. Oct. 1, 1997; Acts 2006, No. 108, §1, eff. July 1, 2006; Acts 2013, No. 221, §2.