Sen. Don Harmon

Filed: 5/20/2011

 

 


 

 


 
09700HB2023sam001LRB097 08661 CEL 55974 a

1
AMENDMENT TO HOUSE BILL 2023

2    AMENDMENT NO. ______. Amend House Bill 2023 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Private Detective, Private Alarm, Private
5Security, Fingerprint Vendor, and Locksmith Act of 2004 is
6amended by changing Section 15-5 and by adding Section 45-65 as
7follows:
 
8    (225 ILCS 447/15-5)
9    (Section scheduled to be repealed on January 1, 2014)
10    Sec. 15-5. Exemptions; private detective. The provisions
11of this Act relating to the licensure of private detectives do
12not apply to any of the following:
13        (1) An employee of the United States, Illinois, or a
14    political subdivision of either while the employee is
15    engaged in the performance of his or her official duties
16    within the scope of his or her employment. However, any

 

 

09700HB2023sam001- 2 -LRB097 08661 CEL 55974 a

1    such person who offers his or her services as a private
2    detective or uses a similar title when these services are
3    performed for compensation or other consideration, whether
4    received directly or indirectly, is subject to this Act.
5        (2) A person, firm, or other entity engaged exclusively
6    in tracing and compiling lineage or ancestry who does not
7    hold himself or herself out to be a private detective.
8        (3) A person engaged exclusively in obtaining and
9    furnishing information as to the financial rating or
10    creditworthiness of persons or a person who provides
11    reports in connection with (i) consumer credit
12    transactions, (ii) information for employment purposes, or
13    (iii) information for the underwriting of consumer
14    insurance.
15        (4) Insurance adjusters employed or under contract as
16    adjusters who engage in no other investigative activities
17    other than those directly connected with adjustment of
18    claims against an insurance company or a self-insured
19    entity by which they are employed or with which they have a
20    contract. No insurance adjuster or company may use the term
21    "investigation" or any derivative thereof, in its name or
22    in its advertising.
23        (5) A person, firm, or other entity engaged in
24    providing computer forensics services so long as the
25    person, firm, or other entity does not hold himself or
26    herself out to be a private detective. For the purposes of

 

 

09700HB2023sam001- 3 -LRB097 08661 CEL 55974 a

1    this subsection, "computer forensics services" means a
2    branch of forensic science pertaining to the recovery and
3    analysis of electronically stored information.
4(Source: P.A. 93-438, eff. 8-5-03.)
 
5    (225 ILCS 447/45-65 new)
6    Sec. 45-65. Confidentiality. All information collected by
7the Department in the course of an examination or investigation
8of a licensee or applicant, including, but not limited to, any
9complaint against a licensee filed with the Department and
10information collected to investigate any such complaint, shall
11be maintained for the confidential use of the Department and
12shall not be disclosed. The Department may not disclose the
13information to anyone other than law enforcement officials,
14other regulatory agencies that have an appropriate regulatory
15interest as determined by the Secretary, or to a party
16presenting a lawful subpoena to the Department. Information and
17documents disclosed to a federal, State, county, or local law
18enforcement agency shall not be disclosed by the agency for any
19purpose to any other agency or person. A formal complaint filed
20against a licensee by the Department or any order issued by the
21Department against a licensee or applicant shall be a public
22record, except as otherwise prohibited by law.
 
23    Section 10. The Real Estate License Act of 2000 is amended
24by changing Section 20-20 and by adding Section 20-78 as

 

 

09700HB2023sam001- 4 -LRB097 08661 CEL 55974 a

1follows:
 
2    (225 ILCS 454/20-20)
3    (Section scheduled to be repealed on January 1, 2020)
4    Sec. 20-20. Grounds for discipline.
5    (a) The Department may refuse to issue or renew or a
6license, may revoke, suspend, place on probation, suspend, or
7revoke any license, reprimand, or take any other disciplinary
8or non-disciplinary action as the Department may deem
9appropriate, including imposing fines proper or impose a fine
10not to exceed $25,000 upon any licensee under this Act or
11against a licensee in handling his or her own property, whether
12held by deed, option, or otherwise, for each violation, with
13regard to any license, for any one or any combination of the
14following causes:
15        (1) Fraud or misrepresentation in applying for, or
16    procuring, a license under this Act or in connection with
17    applying for renewal of a license under this Act.
18        (2) Conviction by plea of guilty or nolo contendere,
19    finding of guilt, jury verdict, or entry of judgment or by
20    sentencing of any crime, including, but not limited to,
21    convictions, preceding sentences of supervision,
22    conditional discharge, or first offender probation, under
23    the laws of any jurisdiction of the United States: (i) that
24    is a felony; or (ii) that is a misdemeanor, an essential
25    element of which is dishonesty, or that is directly related

 

 

09700HB2023sam001- 5 -LRB097 08661 CEL 55974 a

1    to the practice of the profession. The conviction of, plea
2    of guilty or plea of nolo contendre to a felony or
3    misdemeanor, an essential element of which is dishonesty or
4    fraud or larceny, embezzlement, or obtaining money,
5    property, or credit by false pretenses or by means of a
6    confidence game, in this State, or any other jurisdiction.
7        (3) Inability to practice the profession with
8    reasonable judgment, skill, or safety as a result of a
9    physical illness, including, but not limited to,
10    deterioration through the aging process or loss of motor
11    skill, or a mental illness or disability.
12        (4) Practice under this Act as a licensee in a retail
13    sales establishment from an office, desk, or space that is
14    not separated from the main retail business by a separate
15    and distinct area within the establishment.
16        (5) Disciplinary action of another state or
17    jurisdiction against the license or other authorization to
18    practice as a managing broker, broker, salesperson, or
19    leasing agent if at least one of the grounds for that
20    discipline is the same as or the equivalent of one of the
21    grounds for discipline set forth in this Act. A certified
22    copy of the record of the action by the other state or
23    jurisdiction shall be prima facie evidence thereof.
24        (6) Engaging in the practice of real estate brokerage
25    without a license or after the licensee's license was
26    expired or while the license was inoperative.

 

 

09700HB2023sam001- 6 -LRB097 08661 CEL 55974 a

1        (7) Cheating on or attempting to subvert the Real
2    Estate License Exam or continuing education exam.
3        (8) Aiding or abetting an applicant to subvert or cheat
4    on the Real Estate License Exam or continuing education
5    exam administered pursuant to this Act.
6        (9) Advertising that is inaccurate, misleading, or
7    contrary to the provisions of the Act.
8        (10) Making any substantial misrepresentation or
9    untruthful advertising.
10        (11) Making any false promises of a character likely to
11    influence, persuade, or induce.
12        (12) Pursuing a continued and flagrant course of
13    misrepresentation or the making of false promises through
14    licensees, employees, agents, advertising, or otherwise.
15        (13) Any misleading or untruthful advertising, or
16    using any trade name or insignia of membership in any real
17    estate organization of which the licensee is not a member.
18        (14) Acting for more than one party in a transaction
19    without providing written notice to all parties for whom
20    the licensee acts.
21        (15) Representing or attempting to represent a broker
22    other than the sponsoring broker.
23        (16) Failure to account for or to remit any moneys or
24    documents coming into his or her possession that belong to
25    others.
26        (17) Failure to maintain and deposit in a special

 

 

09700HB2023sam001- 7 -LRB097 08661 CEL 55974 a

1    account, separate and apart from personal and other
2    business accounts, all escrow moneys belonging to others
3    entrusted to a licensee while acting as a real estate
4    broker, escrow agent, or temporary custodian of the funds
5    of others or failure to maintain all escrow moneys on
6    deposit in the account until the transactions are
7    consummated or terminated, except to the extent that the
8    moneys, or any part thereof, shall be:
9            (A) disbursed prior to the consummation or
10        termination (i) in accordance with the written
11        direction of the principals to the transaction or their
12        duly authorized agents, (ii) in accordance with
13        directions providing for the release, payment, or
14        distribution of escrow moneys contained in any written
15        contract signed by the principals to the transaction or
16        their duly authorized agents, or (iii) pursuant to an
17        order of a court of competent jurisdiction; or
18            (B) deemed abandoned and transferred to the Office
19        of the State Treasurer to be handled as unclaimed
20        property pursuant to the Uniform Disposition of
21        Unclaimed Property Act. Escrow moneys may be deemed
22        abandoned under this subparagraph (B) only: (i) in the
23        absence of disbursement under subparagraph (A); (ii)
24        in the absence of notice of the filing of any claim in
25        a court of competent jurisdiction; and (iii) if 6
26        months have elapsed after the receipt of a written

 

 

09700HB2023sam001- 8 -LRB097 08661 CEL 55974 a

1        demand for the escrow moneys from one of the principals
2        to the transaction or the principal's duly authorized
3        agent.
4    The account shall be noninterest bearing, unless the
5    character of the deposit is such that payment of interest
6    thereon is otherwise required by law or unless the
7    principals to the transaction specifically require, in
8    writing, that the deposit be placed in an interest bearing
9    account.
10        (18) Failure to make available to the Department all
11    escrow records and related documents maintained in
12    connection with the practice of real estate within 24 hours
13    of a request for those documents by Department personnel.
14        (19) Failing to furnish copies upon request of
15    documents relating to a real estate transaction to a party
16    who has executed that document.
17        (20) Failure of a sponsoring broker to timely provide
18    information, sponsor cards, or termination of licenses to
19    the Department.
20        (21) Engaging in dishonorable, unethical, or
21    unprofessional conduct of a character likely to deceive,
22    defraud, or harm the public.
23        (22) Commingling the money or property of others with
24    his or her own money or property.
25        (23) Employing any person on a purely temporary or
26    single deal basis as a means of evading the law regarding

 

 

09700HB2023sam001- 9 -LRB097 08661 CEL 55974 a

1    payment of commission to nonlicensees on some contemplated
2    transactions.
3        (24) Permitting the use of his or her license as a
4    broker to enable a salesperson or unlicensed person to
5    operate a real estate business without actual
6    participation therein and control thereof by the broker.
7        (25) Any other conduct, whether of the same or a
8    different character from that specified in this Section,
9    that constitutes dishonest dealing.
10        (26) Displaying a "for rent" or "for sale" sign on any
11    property without the written consent of an owner or his or
12    her duly authorized agent or advertising by any means that
13    any property is for sale or for rent without the written
14    consent of the owner or his or her authorized agent.
15        (27) Failing to provide information requested by the
16    Department, or otherwise respond to that request, within 30
17    days of the request.
18        (28) Advertising by means of a blind advertisement,
19    except as otherwise permitted in Section 10-30 of this Act.
20        (29) Offering guaranteed sales plans, as defined in
21    clause (A) of this subdivision (29), except to the extent
22    hereinafter set forth:
23            (A) A "guaranteed sales plan" is any real estate
24        purchase or sales plan whereby a licensee enters into a
25        conditional or unconditional written contract with a
26        seller, prior to entering into a brokerage agreement

 

 

09700HB2023sam001- 10 -LRB097 08661 CEL 55974 a

1        with the seller, by the terms of which a licensee
2        agrees to purchase a property of the seller within a
3        specified period of time at a specific price in the
4        event the property is not sold in accordance with the
5        terms of a brokerage agreement to be entered into
6        between the sponsoring broker and the seller.
7            (B) A licensee offering a guaranteed sales plan
8        shall provide the details and conditions of the plan in
9        writing to the party to whom the plan is offered.
10            (C) A licensee offering a guaranteed sales plan
11        shall provide to the party to whom the plan is offered
12        evidence of sufficient financial resources to satisfy
13        the commitment to purchase undertaken by the broker in
14        the plan.
15            (D) Any licensee offering a guaranteed sales plan
16        shall undertake to market the property of the seller
17        subject to the plan in the same manner in which the
18        broker would market any other property, unless the
19        agreement with the seller provides otherwise.
20            (E) The licensee cannot purchase seller's property
21        until the brokerage agreement has ended according to
22        its terms or is otherwise terminated.
23            (F) Any licensee who fails to perform on a
24        guaranteed sales plan in strict accordance with its
25        terms shall be subject to all the penalties provided in
26        this Act for violations thereof and, in addition, shall

 

 

09700HB2023sam001- 11 -LRB097 08661 CEL 55974 a

1        be subject to a civil fine payable to the party injured
2        by the default in an amount of up to $25,000.
3        (30) Influencing or attempting to influence, by any
4    words or acts, a prospective seller, purchaser, occupant,
5    landlord, or tenant of real estate, in connection with
6    viewing, buying, or leasing real estate, so as to promote
7    or tend to promote the continuance or maintenance of
8    racially and religiously segregated housing or so as to
9    retard, obstruct, or discourage racially integrated
10    housing on or in any street, block, neighborhood, or
11    community.
12        (31) Engaging in any act that constitutes a violation
13    of any provision of Article 3 of the Illinois Human Rights
14    Act, whether or not a complaint has been filed with or
15    adjudicated by the Human Rights Commission.
16        (32) Inducing any party to a contract of sale or lease
17    or brokerage agreement to break the contract of sale or
18    lease or brokerage agreement for the purpose of
19    substituting, in lieu thereof, a new contract for sale or
20    lease or brokerage agreement with a third party.
21        (33) Negotiating a sale, exchange, or lease of real
22    estate directly with any person if the licensee knows that
23    the person has an exclusive brokerage agreement with
24    another broker, unless specifically authorized by that
25    broker.
26        (34) When a licensee is also an attorney, acting as the

 

 

09700HB2023sam001- 12 -LRB097 08661 CEL 55974 a

1    attorney for either the buyer or the seller in the same
2    transaction in which the licensee is acting or has acted as
3    a broker or salesperson.
4        (35) Advertising or offering merchandise or services
5    as free if any conditions or obligations necessary for
6    receiving the merchandise or services are not disclosed in
7    the same advertisement or offer. These conditions or
8    obligations include without limitation the requirement
9    that the recipient attend a promotional activity or visit a
10    real estate site. As used in this subdivision (35), "free"
11    includes terms such as "award", "prize", "no charge", "free
12    of charge", "without charge", and similar words or phrases
13    that reasonably lead a person to believe that he or she may
14    receive or has been selected to receive something of value,
15    without any conditions or obligations on the part of the
16    recipient.
17        (36) Disregarding or violating any provision of the
18    Land Sales Registration Act of 1989, the Illinois Real
19    Estate Time-Share Act, or the published rules promulgated
20    by the Department to enforce those Acts.
21        (37) Violating the terms of a disciplinary order issued
22    by the Department.
23        (38) Paying or failing to disclose compensation in
24    violation of Article 10 of this Act.
25        (39) Requiring a party to a transaction who is not a
26    client of the licensee to allow the licensee to retain a

 

 

09700HB2023sam001- 13 -LRB097 08661 CEL 55974 a

1    portion of the escrow moneys for payment of the licensee's
2    commission or expenses as a condition for release of the
3    escrow moneys to that party.
4        (40) Disregarding or violating any provision of this
5    Act or the published rules promulgated by the Department to
6    enforce this Act or aiding or abetting any individual,
7    partnership, registered limited liability partnership,
8    limited liability company, or corporation in disregarding
9    any provision of this Act or the published rules
10    promulgated by the Department to enforce this Act.
11        (41) Failing to provide the minimum services required
12    by Section 15-75 of this Act when acting under an exclusive
13    brokerage agreement.
14        (42) Habitual or excessive use or addiction to alcohol,
15    narcotics, stimulants, or any other chemical agent or drug
16    that results in a managing broker, broker, salesperson, or
17    leasing agent's inability to practice with reasonable
18    skill or safety.
19    (b) The Department may refuse to issue or renew or may
20suspend the license of any person who fails to file a return,
21pay the tax, penalty or interest shown in a filed return, or
22pay any final assessment of tax, penalty, or interest, as
23required by any tax Act administered by the Department of
24Revenue, until such time as the requirements of that tax Act
25are satisfied in accordance with subsection (g) of Section
262105-15 of the Civil Administrative Code of Illinois.

 

 

09700HB2023sam001- 14 -LRB097 08661 CEL 55974 a

1    (c) The Department shall deny a license or renewal
2authorized by this Act to a person who has defaulted on an
3educational loan or scholarship provided or guaranteed by the
4Illinois Student Assistance Commission or any governmental
5agency of this State in accordance with item (5) of subsection
6(g) of Section 2105-15 of the Civil Administrative Code of
7Illinois.
8    (d) In cases where the Department of Healthcare and Family
9Services (formerly Department of Public Aid) has previously
10determined that a licensee or a potential licensee is more than
1130 days delinquent in the payment of child support and has
12subsequently certified the delinquency to the Department may
13refuse to issue or renew or may revoke or suspend that person's
14license or may take other disciplinary action against that
15person based solely upon the certification of delinquency made
16by the Department of Healthcare and Family Services in
17accordance with item (5) of subsection (g) of Section 2105-15
18of the Civil Administrative Code of Illinois.
19    (e) In enforcing this Section, the Department or Board upon
20a showing of a possible violation may compel an individual
21licensed to practice under this Act, or who has applied for
22licensure under this Act, to submit to a mental or physical
23examination, or both, as required by and at the expense of the
24Department. The Department or Board may order the examining
25physician to present testimony concerning the mental or
26physical examination of the licensee or applicant. No

 

 

09700HB2023sam001- 15 -LRB097 08661 CEL 55974 a

1information shall be excluded by reason of any common law or
2statutory privilege relating to communications between the
3licensee or applicant and the examining physician. The
4examining physicians shall be specifically designated by the
5Board or Department. The individual to be examined may have, at
6his or her own expense, another physician of his or her choice
7present during all aspects of this examination. Failure of an
8individual to submit to a mental or physical examination, when
9directed, shall be grounds for suspension of his or her license
10until the individual submits to the examination if the
11Department finds, after notice and hearing, that the refusal to
12submit to the examination was without reasonable cause.
13    If the Department or Board finds an individual unable to
14practice because of the reasons set forth in this Section, the
15Department or Board may require that individual to submit to
16care, counseling, or treatment by physicians approved or
17designated by the Department or Board, as a condition, term, or
18restriction for continued, reinstated, or renewed licensure to
19practice; or, in lieu of care, counseling, or treatment, the
20Department may file, or the Board may recommend to the
21Department to file, a complaint to immediately suspend, revoke,
22or otherwise discipline the license of the individual. An
23individual whose license was granted, continued, reinstated,
24renewed, disciplined or supervised subject to such terms,
25conditions, or restrictions, and who fails to comply with such
26terms, conditions, or restrictions, shall be referred to the

 

 

09700HB2023sam001- 16 -LRB097 08661 CEL 55974 a

1Secretary for a determination as to whether the individual
2shall have his or her license suspended immediately, pending a
3hearing by the Department.
4    In instances in which the Secretary immediately suspends a
5person's license under this Section, a hearing on that person's
6license must be convened by the Department within 30 days after
7the suspension and completed without appreciable delay. The
8Department and Board shall have the authority to review the
9subject individual's record of treatment and counseling
10regarding the impairment to the extent permitted by applicable
11federal statutes and regulations safeguarding the
12confidentiality of medical records.
13    An individual licensed under this Act and affected under
14this Section shall be afforded an opportunity to demonstrate to
15the Department or Board that he or she can resume practice in
16compliance with acceptable and prevailing standards under the
17provisions of his or her license.
18(Source: P.A. 95-851, eff. 1-1-09; 96-856, eff. 12-31-09.)
 
19    (225 ILCS 454/20-78 new)
20    Sec. 20-78. Confidentiality. All information collected by
21the Department in the course of an examination or investigation
22of a licensee or applicant, including, but not limited to, any
23complaint against a licensee filed with the Department and
24information collected to investigate any such complaint, shall
25be maintained for the confidential use of the Department and

 

 

09700HB2023sam001- 17 -LRB097 08661 CEL 55974 a

1shall not be disclosed. The Department may not disclose the
2information to anyone other than law enforcement officials,
3other regulatory agencies that have an appropriate regulatory
4interest as determined by the Secretary, or to a party
5presenting a lawful subpoena to the Department. Information and
6documents disclosed to a federal, State, county, or local law
7enforcement agency shall not be disclosed by the agency for any
8purpose to any other agency or person. A formal complaint filed
9against a licensee by the Department or any order issued by the
10Department against a licensee or applicant shall be a public
11record, except as otherwise prohibited by law.
 
12    Section 99. Effective date. This Act takes effect upon
13becoming law.".