Public Act 093-0192
Public Act 93-0192 of the 93rd General Assembly
Public Act 93-0192
HB1089 Enrolled LRB093 04120 RLC 04160 b
AN ACT in relation to criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 1961 is amended by
adding Article 37.5 as follows:
(720 ILCS 5/Art. 37.5 heading new)
ARTICLE 37.5. ANIMAL FIGHTING; FORFEITURE
(720 ILCS 5/37.5-5 new)
Sec. 37.5-5. Legislative declaration. The General
Assembly finds that the forfeiture of real property that is
used or intended to be used in connection with any show,
exhibition, program or other activity featuring or otherwise
involving a fight between an animal and any other animal or
human or the intentional killing of any animal for the
purpose of sport, wagering or entertainment, will have a
significant beneficial effect in deterring the rising
incidence of those activities within this State, as well as
other crimes that frequently occur in partnership with animal
fighting, such as illegal gambling, possession of narcotics,
and weapons violations.
(720 ILCS 5/37.5-10 new)
Sec. 37.5-10. Applicability. A person who commits a
felony violation of Section 4.01 of the Humane Care for
Animals Act or a felony violation of Section 26-5 of this
Code shall forfeit (i) any moneys, profits, or proceeds the
person acquired in whole or in part, as a result of
committing the violation and (ii) any real property or
interest in real property that the sentencing court
determines the person acquired in whole or in part, as a
result of committing the violation or the person maintained
or used in whole or in part, to facilitate, directly or
indirectly, the commission of the violation. The person shall
forfeit any interest in, securities, or claim against, or
contractual right of any kind that affords the person a
source of influence over, any enterprise that the person has
established, operated, controlled, conducted, or participated
in conducting if the person's relations to or connection with
the interest, security, or claim, or contractual right,
directly or indirectly, in whole or in part, is traceable to
any thing or benefit that the person has obtained or acquired
as a result of a felony violation of Section 4.01 of the
Humane Care for Animals Act or a felony violation of Section
26-5 of this Code.
(720 ILCS 5/37.5-15 new)
Sec. 37.5-15. Real property forfeiture.
(a) Following the arrest of a person or persons for any
felony offense under Section 4.01 of the Humane Care for
Animals Act or a felony offense under Section 26-5 of this
Code, the State's Attorney of the county in which it occurred
or the Attorney General may seek forfeiture of the real
property associated with the offense, whether the real
property belongs to the person organizing the show,
exhibition, program, or other such activity described in
subsections (a) through (g) of Section 4.01 of the Humane
Care for Animals Act or Section 26-5 of this Code or to any
other person participating in the activity described in
subsections (a) through (g) of Section 4.01 of the Humane
Care for Animals Act or Section 26-5 of this Code, who is
related to the organization and operation of the activity or
to any person who knowingly allowed the activities to occur
on his or her premises.
(b) Real property includes any land, home, house,
apartment, building, garage, site, structure, or facility,
whether enclosed or not, and any part or section of any land,
home, house, apartment, building, garage, site, structure, or
facility and any right title, or interest in the whole of any
lot or tract of land and any appurtenances or improvements on
the land. Real property includes, but is not limited to, any
leasehold or possessory interest or beneficial interest in a
land trust.
(720 ILCS 5/37.5-20 new)
Sec. 37.5-20. Procedure. Proceedings instituted under
this Article shall be subject to and conducted in accordance
with the procedures set forth in this Section.
(a) Notice to owner or interest holder. Whenever notice
of pending forfeiture or service of a lis pendens is required
under the provisions of this Article, the notice or service
shall be given as follows:
(1) If the owner's or interest holder's name and
current address are known, then by either personal
service or mailing a copy of the notice by certified
mail, return receipt requested, to that address. For
purposes of notice under this Section if a person has
been arrested for the conduct giving rise to the
forfeiture, then the address provided to the arresting
agency at the time of arrest shall be deemed to be that
person's known address. Provided, however, if an owner or
interest holder's address changes prior to the effective
date of the notice of pending forfeitures, the owner or
interest holder shall promptly notify the seizing agency
of the change in address or, if the owner or interest
holder's address changes subsequent to the effective date
of the notice of pending forfeitures, the owner or
interest holder shall promptly notify the State's
Attorney or Attorney General of the change in address; or
(2) If the owner's or interest holder's address is
not known, and is not on record as provided in paragraph
(1), then by publication for 3 successive weeks in a
newspaper of general circulation in the county in which
the seizure occurred; or
(3) Notice served under this Article is effective
upon personal service, the last date of publication, or
the mailing of written notice, whichever is earlier.
(b) Probable cause hearing. In an action brought by the
People of the State of Illinois under this Section, in which
a restraining order, injunction, prohibition, lis pendens, or
other action in connection with any property or interest
subject to forfeiture under this Article is sought, the
circuit court presiding over the trial of the person charged
with a felony violation of Section 4.01 of the Humane Care
for Animals Act or a felony offense under Section 26-5 of
this Code shall first determine whether there is probable
cause to believe that the person so charged has committed a
felony offense under Section 4.01 of the Humane Care for
Animals Act or a felony offense under Section 26-5 of this
Code and whether the property or interest, is subject to
forfeiture under this Article. To make that determination
before entering an order in connection with that property or
interest, the court shall conduct a hearing without a jury,
at which the People must establish that there is: (i)
probable cause that the person charged committed a felony
offense under Section 4.01 of the Humane Care for Animals Act
or a felony offense under Section 26-5 of this Code and (ii)
probable cause that the property or interest may be subject
to forfeiture under this Article. The hearing may be
conducted simultaneously with a preliminary hearing, if the
prosecution is commenced by information or complaint, or by
motion of the People at any stage in the proceedings. The
court may accept, at a preliminary hearing, (i) the filing of
an information charging that the defendant committed a felony
offense under Section 4.01 of the Humane Care for Animals Act
or a felony offense under Section 26-5 of this Code or (ii)
the return of an indictment by a grand jury charging that the
defendant committed a felony offense under Section 4.01 of
the Humane Care for Animals Act or a felony offense under
Section 26-5 of this Code as sufficient evidence of probable
cause that the person committed the offense.
(1) Upon making a finding of probable cause, the
circuit court shall enter a restraining order,
injunction, lis pendens, or prohibition or shall take
other action in connection with the property or other
interest subject to forfeiture under this Article as is
necessary to insure that the property is not removed from
the jurisdiction of the court, concealed, destroyed, or
otherwise disposed of by the owner of that property or
interest before a forfeiture hearing under this Article.
The State's Attorney shall file a certified copy of the
restraining order, injunction, or other prohibition with
the recorder or registrar of title of each county in
which the property may be located. An injunction,
restraining order, or other prohibition issued under this
Section does not affect the rights of any bonafide
purchaser, mortgagee, judgment creditor, or other lien
holder that arose before the date the certified copy is
filed.
(2) The court may at any time, on verified petition
by the defendant, conduct a hearing to determine whether
all or any portion of the property or interest, which the
court previously determined to be subject to forfeiture
or subject to any restraining order, injunction, lis
pendens, prohibition, or other action, should be
released. The court may in its discretion release the
property to the defendant for good cause shown.
(720 ILCS 5/37.5-25 new)
Sec. 37.5-25. Forfeiture hearing. If real property is
subject to seizure for felony violations under Section 4.01
of the Humane Care for Animals Act or felony violations under
Section 26-5 of this Code, upon conviction, the State's
Attorney or Attorney General may commence an action by
petition in the sentencing court anytime following sentencing
of the defendant. The sentencing court shall conduct a
hearing to determine whether any property or property
interest of the defendant, profits, or proceeds is subject to
forfeiture under this Article. At the forfeiture hearing the
People have the burden of establishing, by a preponderance of
the evidence, that the property or property interest is
subject to forfeiture.
(1) All property declared forfeited under this
Article vests in this State on the date of the commission
of the conduct giving rise to forfeiture together with
the proceeds of the property after that time. Any such
property or proceeds subsequently transferred to any
person remain subject to forfeiture and thereafter shall
be ordered forfeited unless the transferee claims and
establishes in a hearing under the provisions of this
Article that the transferee's interest is exempt.
(2) If the State does not show by a preponderance
of the evidence or a claimant has established by
preponderance of evidence that the claimant has an
interest that is exempt under this Article, the court
shall order the interest in the property returned or
conveyed to the claimant and shall order all other
property forfeited to the State. If the State does show
by a preponderance of the evidence that the property
interest is subject to forfeiture, and the claimant does
not establish by a preponderance of evidence that the
claimant has an interest that is exempt under this
Article, the court shall order all real property
forfeited to the State.
(3) A defendant convicted in any criminal
proceeding is precluded from later denying the essential
allegations of the criminal offense of which the
defendant was convicted in any proceeding under this
Article regardless of the pendency of an appeal from that
conviction. However, evidence of the pendency of an
appeal is admissible.
(720 ILCS 5/37.5-30 new)
Sec. 37.5-30. Exemptions from forfeiture.
(a) A property interest is exempt from forfeiture under
this Article if its owner or interest holder establishes by a
preponderance of evidence that the owner or interest holder:
(1) in the case of real property is not legally
accountable for the conduct giving rise to the
forfeiture, or did not solicit, conspire, or attempt to
commit the conduct giving rise to the forfeiture; and
(2) had not acquired and did not stand to acquire
proceeds from the conduct giving rise to its forfeiture
other than as an interest holder in an arms length
commercial transaction; and
(3) does not hold the property for the benefit of
or as a nominee for any person whose conduct gave rise to
its forfeiture, and, if the owner or interest holder
acquired the interest through any such person, the owner
or interest holder acquired it as a bona fide purchaser
for value without knowingly taking part in the conduct
giving rise to the forfeiture; and
(4) that the owner or interest holder acquired the
interest:
(i) before the commencement of the conduct
giving rise to its forfeiture and the person whose
conduct gave rise to its forfeiture did not have the
authority to convey the interest to a bona fide
purchaser for value at the time of the conduct; or
(ii) after the commencement of the conduct
giving rise to its forfeiture, and the owner or
interest holder acquired the interest as a
mortgagee, secured creditor, lienholder, or bona
fide purchaser for value without knowledge of the
conduct which gave rise to the forfeiture; and
(iii) in the case of real estate, before the
filing in the office of the recorder of the county
in which the real estate is located of a notice of a
lis pendens notice.
(5)(A) With respect to a property interest in
existence at the time the illegal conduct giving rise to
the forfeiture took place,
(i) did not know of the conduct giving rise to
forfeiture; or
(ii) upon learning of the conduct giving rise
to the forfeiture, did all that reasonably could be
expected under the circumstances to terminate such
use of the property.
(B)(i) For the purposes of this paragraph (5),
ways in which a person may show that he or she did
all that reasonably could be expected may include
demonstrating that he or she, to the extent
permitted by law:
(I) gave timely notice to an appropriate
law enforcement agency of information that led
the person to know the conduct giving rise to a
forfeiture would occur or has occurred; and
(II) in a timely fashion revoked or made a
good faith attempt to revoke permission for
those engaging in such conduct to use the
property or took reasonable actions in
consultation with a law enforcement agency to
discourage or prevent the illegal use of the
property.
(ii) A person is not required by this
subparagraph to take steps that the person
reasonably believes would be likely to subject any
person (other than the person whose conduct gave
rise to the forfeiture) to physical danger.
(b) If the court determines, in accordance with this
Section, that an innocent owner has a partial interest in
property otherwise subject to forfeiture, or a joint tenancy
or tenancy by the entirety in that property, the court may
enter an appropriate order:
(1) severing the property;
(2) transferring the property to the State with a
provision that the State compensate the innocent owner to
the extent of his or her ownership interest once a final
order of forfeiture has been entered and the property has
been reduced to liquid assets; or
(3) permitting the innocent owner to retain the
property subject to a lien in favor of the State to the
extent of the forfeitable interest in the property.
(c) In this Section, the term "owner":
(1) means a person with an ownership interest in
the specific property sought to be forfeited, including a
leasehold, lien, mortgage, recorded security interest, or
valid assignment of an ownership interest; and
(2) does not include:
(i) a person with only a general unsecured
interest in, or claim against, the property or
estate of another;
(ii) a bailee unless the bailor is identified
and the bailee shows a colorable legitimate interest
in the property seized; or
(iii) a nominee who exercises no dominion or
control over the property.
(720 ILCS 5/37.5-35 new)
Sec. 37.5-35. Settlement of claims. Notwithstanding
other provisions of this Article, the State's Attorney and a
claimant of seized property may enter into an agreed upon
settlement concerning the property subject to forfeiture in
such an amount and upon such terms as are set out in writing
in a settlement agreement.
(720 ILCS 5/37.5-40 new)
Sec. 37.5-40. Judicial review. If property has been
declared forfeited under this Article, any person who has an
interest in the property declared forfeited may, within 30
days of the effective date of the notice of the declaration
of forfeiture, file a claim and cost bond and apply to the
court for reconsideration based upon his or her interest in
the property.
(720 ILCS 5/37.5-45 new)
Sec. 37.5-45. Disposal of property. Real property taken
or detained under this Section is not subject to replevin,
but is deemed to be in the custody of the Director of State
Police subject only to the order and judgments of the circuit
court having jurisdiction over the forfeiture proceedings and
the decisions of the State's Attorney or Attorney General
under this Article.
(1) When property is forfeited under this Article,
the Director of State Police shall sell all such property
and shall distribute the proceeds of the sale, together
with any moneys forfeited or seized in accordance with
paragraph (2).
(2) All monies and the sale proceeds of all other
property forfeited and seized under this Article shall be
distributed as follows:
(A) 65% shall be distributed to the local,
municipal, county, or State law enforcement agency
or agencies that conducted or participated in the
investigation resulting in the forfeiture. The
distributions shall bear a reasonable relationship
to the degree of direct participation of the law
enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of
the property forfeited and the total law enforcement
effort with respect to the violation of the law upon
which the forfeiture is based.
(B) 12.5% shall be distributed to the Office
of the State's Attorney of the county in which the
prosecution resulting in the forfeiture was
instituted for use in the enforcement of laws,
including animal fighting.
(C) 12.5% shall be distributed to the Illinois
Department of Agriculture for use of expenses
incurred in the investigation, prosecution, and
appeal of cases arising under laws governing animal
fighting.
(D) 10% shall be retained by the Department of
State Police for expenses related to the
administration and sale of seized and forfeited
property.
Section 99. Effective date. This Act takes effect upon
becoming law.
Effective Date: 07/14/03
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