093_HB2412ham001

 










                                     LRB093 08190 LRD 13646 a

 1                    AMENDMENT TO HOUSE BILL 2412

 2        AMENDMENT NO.     .  Amend House Bill 2412 as follows:

 3    on page 1, line 19 by replacing "a" with "the"; and

 4    on page 1, line 22 after "(g)" by  inserting  "but  does  not
 5    include  amounts  recoverable  under  Section  3-806  of  the
 6    Uniform Commercial Code and Section 17-1a of this Code"; and

 7    on  page  3,  by  inserting  between  lines  15  and  16  the
 8    following:
 9             "(g) (1)  The  private  entity  shall be required to
10        maintain  adequate   general   liability   insurance   of
11        $1,000,000  per  occurrence  as well as adequate coverage
12        for potential loss resulting  from  employee  dishonesty.
13        The State's Attorney may require a surety bond payable to
14        the State's Attorney if in the State's Attorney's opinion
15        it   is   determined  that  the  private  entity  is  not
16        adequately insured or funded.
17             (2)  (A) Each private entity  that  has  a  contract
18        with   the  State's  Attorney  to  conduct  a  bad  check
19        diversion program shall at all times maintain a  separate
20        bank  account  in  which  all  moneys  received  from the
21        offenders  participating  in   the   program   shall   be
22        deposited, referred to as a  "Trust Account", except that
 
                            -2-      LRB093 08190 LRD 13646 a
 1        negotiable instruments received may be forwarded directly
 2        to  a  victim  of the deceptive practice committed by the
 3        offender if that procedure is provided for by  a  writing
 4        executed  by  the  victim.  Moneys  received  shall be so
 5        deposited within 5 business days  after  posting  to  the
 6        private   entity's  books  of  account.  There  shall  be
 7        sufficient funds in the trust account at all times to pay
 8        the victims the amount due them.
 9                  (B) The trust account shall be established in a
10             bank,  savings  and  loan  association,   or   other
11             recognized  depository  which  is federally or State
12             insured or otherwise secured as defined by rule.  If
13             the  account is interest bearing, the private entity
14             shall pay to the victim interest earned on funds  on
15             deposit after the 60th day.
16                  (C)  Each private entity shall keep on file the
17             name of the bank, savings and loan  association,  or
18             other  recognized  depository  in  which  each trust
19             account  is  maintained,  the  name  of  each  trust
20             account, and the names of the persons authorized  to
21             withdraw   funds  from  each  account.  The  private
22             entity, within 30 days of the time of  a  change  of
23             depository  or person authorized to make withdrawal,
24             shall update its files to reflect  that  change.  An
25             examination  and  audit  of a private entity's trust
26             accounts may be  made by the State's Attorney as the
27             State's Attorney deems appropriate. A trust  account
28             financial  report  shall  be  submitted  annually on
29             forms acceptable to the State's Attorney.
30             (3) The  State's  Attorney  may  cancel  a  contract
31        entered into with a private entity under this Section for
32        any one or any combination of the following causes:
33                  (A)  Conviction  of  the  private entity or the
34             principals of the private entity of any crime  under
 
                            -3-      LRB093 08190 LRD 13646 a
 1             the laws of any U.S. jurisdiction which is a felony,
 2             a  misdemeanor  an  essential  element  of  which is
 3             dishonesty, or of any crime which  directly  relates
 4             to the practice of the profession.
 5                  (B)  A  determination  that  the private entity
 6             has engaged in conduct prohibited in item (4).
 7             (4)  The State's Attorney may determine whether  the
 8        private  entity  has  engaged in the following prohibited
 9        conduct:
10                  (A)  Using  or  threatening  to  use  force  or
11             violence to cause physical harm to an offender,  his
12             or her family, or his or her property.
13                  (B)  Threatening  the  seizure,  attachment, or
14             sale of an offender's property where such action can
15             only  be  taken  pursuant  to  court  order  without
16             disclosing  that   prior   court   proceedings   are
17             required.
18                  (C)  Disclosing   or   threatening  to disclose
19             information  adversely   affecting   an   offender's
20             reputation  for credit worthiness with knowledge the
21             information is false.
22                  (D)  Initiating  or  threatening  to   initiate
23             communication  with  an  offender's  employer unless
24             there has been a  default  of  the  payment  of  the
25             obligation  for at least 30 days and at least 5 days
26             prior written notice, to the last known  address  of
27             the  offender,  of the intention to communicate with
28             the employer has been given to the employee,  except
29             as expressly permitted by law or court order.
30                  (E)  Communicating  with  the  offender  or any
31             member of the offender's family at such  a  time  of
32             day   or   night  and  with  such  frequency  as  to
33             constitute harassment of the offender or any  member
34             of  the  offender's  family.   For  purposes of this
 
                            -4-      LRB093 08190 LRD 13646 a
 1             clause (E) the following  conduct  shall  constitute
 2             harassment:
 3                  (i)  Communicating  with  the  offender  or any
 4             member of his or her family at any unusual  time  or
 5             place  or  a  time or place known or which should be
 6             known to be inconvenient to the  offender.   In  the
 7             absence   of   knowledge  of  circumstances  to  the
 8             contrary, a private entity  shall  assume  that  the
 9             convenient time for communicating with a consumer is
10             after 8 o'clock a.m. and before 9 o'clock p.m. local
11             time at the offender's residence.
12                  (ii)  The  threat of publication or publication
13             of a list of offenders who allegedly refuse  to  pay
14             restitution, except by the State's Attorney.
15                  (iii)    The   threat   of   advertisement   or
16             advertisement for sale of any restitution to  coerce
17             payment of the restitution.
18                  (iv)  Causing  a  telephone to ring or engaging
19             any person in telephone conversation  repeatedly  or
20             continuously  with intent to annoy, abuse, or harass
21             any person at the called number.
22                  (v)  Using   profane,   obscene   or    abusive
23             language   in  communicating with a offender, his or
24             her family, or others.
25                  (vi) Disclosing  or  threatening   to  disclose
26             information  relating  to  a  offender's case to any
27             other person except the victim and  appropriate  law
28             enforcement personnel.
29                  (vii)  Disclosing  or threatening  to  disclose
30             information  concerning  the  alleged  criminal  act
31             which the private  entity  knows  to  be  reasonably
32             disputed by the offender without disclosing the fact
33             that the offender disputes the accusation.
34                  (viii)  Engaging   in  any  conduct  which  the
 
                            -5-      LRB093 08190 LRD 13646 a
 1             State's Attorney finds was intended to cause and did
 2             cause mental or physical illness to the offender  or
 3             his or her family.
 4                  (ix)  Attempting  or  threatening  to enforce a
 5             right or remedy with knowledge  or  reason  to  know
 6             that the right or remedy does not exist.
 7                  (x)  Except   as   authorized  by  the  State's
 8             Attorney, using  any  form  of  communication  which
 9             simulates  legal  or judicial process or which gives
10             the  appearance  of  being  authorized,  issued   or
11             approved  by a governmental agency or official or by
12             an attorney at law when it is not.
13                  (xi)  Using  any  badge,  uniform,   or   other
14             indicia  of  any  governmental  agency  or official,
15             except as  authorized  by  law  or  by  the  State's
16             Attorney.
17                  (xii)  Except  as  authorized  by  the  State's
18             Attorney,  conducting  business under any name or in
19             any  manner  which  suggests  or  implies  that  the
20             private entity is bonded if such private entity   is
21             or  is  a  branch  of  or  is  affiliated  with  any
22             governmental  agency or court if such private entity
23             is not.
24                  (xiii)  Misrepresenting  the  amount   of   the
25             restitution alleged to be owed.
26                  (xiv)  Except  as  authorized  by  the  State's
27             Attorney,  representing that an existing restitution
28             amount  may  be  increased  by   the   addition   of
29             attorney's  fees,  investigation  fees, or any other
30             fees or charges when those fees or charges  may  not
31             legally be added to the existing restitution.
32                  (xv)  Except   as  authorized  by  the  State's
33             Attorney, representing that the private entity is an
34             attorney at law or an agent for an attorney  if  the
 
                            -6-      LRB093 08190 LRD 13646 a
 1             entity is not.
 2                  (xvi)  Collecting  or attempting to collect any
 3             interest or other charge or fee  in  excess  of  the
 4             actual  restitution  or claim unless the interest or
 5             other charge or fee is expressly authorized  by  the
 6             State's   Attorney,   who   shall   determine   what
 7             constitutes a reasonable collection fee.
 8                  (xvii)    Communicating   or   threatening   to
 9             communicate with a offender when the private  entity
10             is  informed  in  writing  by  an  attorney that the
11             attorney  represents  the  offender  concerning  the
12             claim, unless authorized by  the  attorney.  If  the
13             attorney fails to respond within a reasonable period
14             of time, the private entity may communicate with the
15             offender.  The  private  entity may communicate with
16             the offender when the attorney gives his consent.
17                  (xviii)  Engaging in  dishonorable,  unethical,
18             or  unprofessional  conduct of a character likely to
19             deceive, defraud, or harm the public.
20             (5)  The State's Attorney shall audit  the  accounts
21        of  the  bad  check  diversion  program  after  notice in
22        writing to the private entity.
23             (6)  Any information obtained by  a  private  entity
24        that  has a contract with the State's Attorney to conduct
25        a bad check diversion program is confidential information
26        between the State's Attorney and the private  entity  and
27        may  not be sold or used for any other purpose but may be
28        shared with other authorized law enforcement agencies  as
29        determined by the State's Attorney."; and

30    on page 3, line 16, by replacing "(g)" with "(h)"; and

31    on page 3, line 17, by replacing "may" with "shall"; and

32    on page 3, line 21, after "The", by inserting "face amount of
33    the dishonored check or draft and the"; and
 
                            -7-      LRB093 08190 LRD 13646 a
 1    on  page  3,  line  21,  after  "paid",  by inserting "by the
 2    State's Attorney or private entity under  contract  with  the
 3    State's Attorney"; and

 4    on page 3, by inserting below line 30 the following:

 5        "(i)  The  offender,  if  aggrieved  by  an action of the
 6    private entity contracted to operate a  bad  check  diversion
 7    program,  may  submit a grievance to the State's Attorney who
 8    may then resolve the grievance. The private entity must  give
 9    notice  to  the  offender  that  the  grievance  procedure is
10    available. The grievance procedure shall  be  established  by
11    the State's Attorney.".