093_HB2412eng

 
HB2412 Engrossed                     LRB093 08190 RLC 08397 b

 1        AN ACT in relation to criminal law.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Criminal  Code  of  1961  is  amended  by
 5    adding Section 17-1b as follows:

 6        (720 ILCS 5/17-1b new)
 7        Sec.   17-lb.  State's  Attorney's  bad  check  diversion
 8    program.
 9        (a)  In this Section:
10        "Offender" means a  person  charged  with,  or  for  whom
11    probable  cause  exists  to charge the person with, deceptive
12    practices.
13        "Pretrial diversion" means the decision of  a  prosecutor
14    to refer an offender to a diversion program on condition that
15    the  criminal  charges against the offender will be dismissed
16    after a specified period of time, or the  case  will  not  be
17    charged, if the offender successfully completes the program.
18        "Restitution"  means  all  amounts payable to a victim of
19    deceptive practices under the  bad  check  diversion  program
20    created under this Section, including the amount of the check
21    and  any transaction fees payable to a victim as set forth in
22    subsection (g) but does not include amounts recoverable under
23    Section 3-806 of the  Uniform  Commercial  Code  and  Section
24    17-1a of this Code.
25        (b)  A  State's  Attorney  may  create  within his or her
26    office a bad check diversion program for offenders who  agree
27    to   voluntarily   participate  in  the  program  instead  of
28    undergoing prosecution. The program may be conducted  by  the
29    State's  Attorney  or by a private entity under contract with
30    the State's Attorney. If the State's Attorney contracts  with
31    a  private  entity  to  perform any services in operating the
 
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 1    program, the entity  shall  operate  under  the  supervision,
 2    direction,  and  control of the State's Attorney. Any private
 3    entity  providing  services  under  this  Section  is  not  a
 4    "collection  agency"  as  that  term  is  defined  under  the
 5    Collection Agency Act.
 6        (c)  If an offender is referred to the State's  Attorney,
 7    the  State's  Attorney  may determine whether the offender is
 8    appropriate  for  acceptance  in  the  program.  The  State's
 9    Attorney  may  consider,  but  shall  not   be   limited   to
10    consideration of, the following factors:
11             (1)  the  amount  of  the  check  that  was drawn or
12        passed;
13             (2)  prior referrals of the offender to the program;
14             (3)  whether other charges  of  deceptive  practices
15        are pending against the offender;
16             (4)  the  evidence presented to the State's Attorney
17        regarding the facts and circumstances of the incident;
18             (5)  the offender's criminal history; and
19             (6)  the reason the  check  was  dishonored  by  the
20        financial institution.
21        (d)  The  bad  check  diversion  program  may  require an
22    offender to do one or more of the following:
23             (i)  pay  for,  at  his  or  her  own  expense,  and
24        successfully complete an educational class  held  by  the
25        State's  Attorney or a private entity under contract with
26        the State's Attorney;
27             (ii)  make full restitution for the offense;
28             (iii)  pay a per-check  administrative  fee  as  set
29        forth in this Section.
30        (e)  If  an  offender  is  diverted  to  the program, the
31    State's Attorney shall agree in writing not to prosecute  the
32    offender  upon  the  offender's  successful completion of the
33    program  conditions.  The  State's  Attorney's  agreement  to
34    divert the offender shall specify the offenses that will  not
 
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 1    be  prosecuted  by  identifying  the  checks  involved in the
 2    transactions.
 3        (f)  The  State's  Attorney,  or  private  entity   under
 4    contract with the State's Attorney, may collect a fee from an
 5    offender   diverted  to  the  State's  Attorney's  bad  check
 6    diversion program. This  fee  may  be  deposited  in  a  bank
 7    account maintained by the State's Attorney for the purpose of
 8    depositing  fees  and paying the expenses of the program. The
 9    State's Attorney may require that the fee be paid directly to
10    a  private  entity  that  administers  the  program  under  a
11    contract  with  the  State's  Attorney.  The  amount  of  the
12    administrative fees collected by the State's  Attorney  under
13    the  program  may  not exceed $35 per check. The county board
14    may, however, by ordinance, increase the fees allowed by this
15    Section if the increase is justified by  an  acceptable  cost
16    study  showing  that the fees allowed by this Section are not
17    sufficient to cover the cost of providing the service.
18             (g)  (1)  The private entity shall  be  required  to
19        maintain   adequate   general   liability   insurance  of
20        $1,000,000 per occurrence as well  as  adequate  coverage
21        for  potential  loss  resulting from employee dishonesty.
22        The State's Attorney may require a surety bond payable to
23        the State's Attorney if in the State's Attorney's opinion
24        it  is  determined  that  the  private  entity   is   not
25        adequately insured or funded.
26             (2)  (A)  Each  private  entity  that has a contract
27        with  the  State's  Attorney  to  conduct  a  bad   check
28        diversion  program shall at all times maintain a separate
29        bank account  in  which  all  moneys  received  from  the
30        offenders   participating   in   the   program  shall  be
31        deposited, referred to as a  "Trust Account", except that
32        negotiable instruments received may be forwarded directly
33        to a victim of the deceptive practice  committed  by  the
34        offender  if  that procedure is provided for by a writing
 
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 1        executed by the  victim.  Moneys  received  shall  be  so
 2        deposited  within  5  business days  after posting to the
 3        private  entity's  books  of  account.  There  shall   be
 4        sufficient funds in the trust account at all times to pay
 5        the victims the amount due them.
 6                  (B) The trust account shall be established in a
 7             bank,   savings   and  loan  association,  or  other
 8             recognized depository which is  federally  or  State
 9             insured  or otherwise secured as defined by rule. If
10             the account is interest bearing, the private  entity
11             shall  pay to the victim interest earned on funds on
12             deposit after the 60th day.
13                  (C) Each private entity shall keep on file  the
14             name  of  the bank, savings and loan association, or
15             other recognized  depository  in  which  each  trust
16             account  is  maintained,  the  name  of  each  trust
17             account,  and the names of the persons authorized to
18             withdraw  funds  from  each  account.  The   private
19             entity,  within  30  days of the time of a change of
20             depository or person authorized to make  withdrawal,
21             shall  update  its  files to reflect that change. An
22             examination and audit of a  private  entity's  trust
23             accounts may be  made by the State's Attorney as the
24             State's  Attorney deems appropriate. A trust account
25             financial report  shall  be  submitted  annually  on
26             forms acceptable to the State's Attorney.
27             (3)  The  State's  Attorney  may  cancel  a contract
28        entered into with a private entity under this Section for
29        any one or any combination of the following causes:
30                  (A) Conviction of the  private  entity  or  the
31             principals  of the private entity of any crime under
32             the laws of any U.S. jurisdiction which is a felony,
33             a misdemeanor  an  essential  element  of  which  is
34             dishonesty,  or  of any crime which directly relates
 
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 1             to the practice of the profession.
 2                  (B)  A determination that  the  private  entity
 3             has engaged in conduct prohibited in item (4).
 4             (4)  The  State's Attorney may determine whether the
 5        private entity has engaged in  the  following  prohibited
 6        conduct:
 7                  (A)  Using  or  threatening  to  use  force  or
 8             violence  to cause physical harm to an offender, his
 9             or her family, or his or her property.
10                  (B)  Threatening the  seizure,  attachment,  or
11             sale of an offender's property where such action can
12             only  be  taken  pursuant  to  court  order  without
13             disclosing   that   prior   court   proceedings  are
14             required.
15                  (C)  Disclosing  or  threatening   to  disclose
16             information   adversely   affecting   an  offender's
17             reputation for credit worthiness with knowledge  the
18             information is false.
19                  (D)  Initiating   or  threatening  to  initiate
20             communication with  an  offender's  employer  unless
21             there  has  been  a  default  of  the payment of the
22             obligation for at least 30 days and at least 5  days
23             prior  written  notice, to the last known address of
24             the offender, of the intention to  communicate  with
25             the  employer has been given to the employee, except
26             as expressly permitted by law or court order.
27                  (E)  Communicating with  the  offender  or  any
28             member  of  the  offender's family at such a time of
29             day  or  night  and  with  such  frequency   as   to
30             constitute  harassment of the offender or any member
31             of the offender's  family.   For  purposes  of  this
32             clause  (E)  the  following conduct shall constitute
33             harassment:
34                  (i) Communicating  with  the  offender  or  any
 
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 1             member  of  his or her family at any unusual time or
 2             place or a time or place known or  which  should  be
 3             known  to  be  inconvenient to the offender.  In the
 4             absence  of  knowledge  of  circumstances   to   the
 5             contrary,  a  private  entity  shall assume that the
 6             convenient time for communicating with a consumer is
 7             after 8 o'clock a.m. and before 9 o'clock p.m. local
 8             time at the offender's residence.
 9                  (ii) The threat of publication  or  publication
10             of  a  list of offenders who allegedly refuse to pay
11             restitution, except by the State's Attorney.
12                  (iii)   The   threat   of   advertisement    or
13             advertisement  for sale of any restitution to coerce
14             payment of the restitution.
15                  (iv) Causing a telephone to  ring  or  engaging
16             any  person  in telephone conversation repeatedly or
17             continuously with intent to annoy, abuse, or  harass
18             any person at the called number.
19                  (v)   Using   profane,   obscene   or   abusive
20             language  in communicating with an offender, his  or
21             her family, or others.
22                  (vi)  Disclosing   or  threatening  to disclose
23             information relating to an offender's  case  to  any
24             other  person  except the victim and appropriate law
25             enforcement personnel.
26                  (vii) Disclosing or threatening   to   disclose
27             information  concerning  the  alleged  criminal  act
28             which  the  private  entity  knows  to be reasonably
29             disputed by the offender without disclosing the fact
30             that the offender disputes the accusation.
31                  (viii)  Engaging  in  any  conduct  which   the
32             State's Attorney finds was intended to cause and did
33             cause  mental or physical illness to the offender or
34             his or her family.
 
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 1                  (ix)  Attempting or threatening  to  enforce  a
 2             right  or  remedy  with  knowledge or reason to know
 3             that the right or remedy does not exist.
 4                  (x)  Except  as  authorized  by   the   State's
 5             Attorney,  using  any  form  of  communication which
 6             simulates legal or judicial process or  which  gives
 7             the   appearance  of  being  authorized,  issued  or
 8             approved by a governmental agency or official or  by
 9             an attorney at law when it is not.
10                  (xi)  Using   any   badge,  uniform,  or  other
11             indicia of  any  governmental  agency  or  official,
12             except  as  authorized  by  law  or  by  the State's
13             Attorney.
14                  (xii)  Except  as  authorized  by  the  State's
15             Attorney, conducting business under any name  or  in
16             any  manner  which  suggests  or  implies  that  the
17             private  entity is bonded if such private entity  is
18             or  is  a  branch  of  or  is  affiliated  with  any
19             governmental agency or court if such private  entity
20             is not.
21                  (xiii)  Misrepresenting   the   amount  of  the
22             restitution alleged to be owed.
23                  (xiv)  Except  as  authorized  by  the  State's
24             Attorney, representing that an existing  restitution
25             amount   may   be   increased  by  the  addition  of
26             attorney's fees, investigation fees,  or  any  other
27             fees  or  charges when those fees or charges may not
28             legally be added to the existing restitution.
29                  (xv)  Except  as  authorized  by  the   State's
30             Attorney, representing that the private entity is an
31             attorney  at  law or an agent for an attorney if the
32             entity is not.
33                  (xvi)  Collecting or attempting to collect  any
34             interest  or  other  charge  or fee in excess of the
 
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 1             actual restitution or claim unless the  interest  or
 2             other  charge  or fee is expressly authorized by the
 3             State's   Attorney,   who   shall   determine   what
 4             constitutes a reasonable collection fee.
 5                  (xvii)   Communicating   or   threatening    to
 6             communicate with an offender when the private entity
 7             is  informed  in  writing  by  an  attorney that the
 8             attorney  represents  the  offender  concerning  the
 9             claim, unless authorized by  the  attorney.  If  the
10             attorney fails to respond within a reasonable period
11             of time, the private entity may communicate with the
12             offender.  The  private  entity may communicate with
13             the offender when the attorney gives his consent.
14                  (xviii)  Engaging in  dishonorable,  unethical,
15             or  unprofessional  conduct of a character likely to
16             deceive, defraud, or harm the public.
17             (5)  The State's Attorney shall audit  the  accounts
18        of  the  bad  check  diversion  program  after  notice in
19        writing to the private entity.
20             (6)  Any information obtained by  a  private  entity
21        that  has a contract with the State's Attorney to conduct
22        a bad check diversion program is confidential information
23        between the State's Attorney and the private  entity  and
24        may  not be sold or used for any other purpose but may be
25        shared with other authorized law enforcement agencies  as
26        determined by the State's Attorney.
27        (h)  The   State's  Attorney,  or  private  entity  under
28    contract  with  the  State's  Attorney,  shall  recover,   in
29    addition to the face amount of the dishonored check or draft,
30    a  transaction  fee to defray the costs and expenses incurred
31    by a victim who received a dishonored check that was made  or
32    delivered  by the offender. The face amount of the dishonored
33    check or draft and the transaction fee shall be paid  by  the
34    State's  Attorney  or  private entity under contract with the
 
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 1    State's  Attorney  to  the  victim  as  restitution  for  the
 2    offense. The amount of the transaction fee must  not  exceed:
 3    $25  if the face amount of the check or draft does not exceed
 4    $100; $30 if the face amount of the check or draft is greater
 5    than $100 but does not exceed $250; $35 if the face amount of
 6    the check or draft is greater than $250 but does  not  exceed
 7    $500; $40 if the face amount of the check or draft is greater
 8    than  $500  but  does  not exceed $1,000; and $50 if the face
 9    amount of the check or draft is greater than $1,000.
10        (i)  The offender, if  aggrieved  by  an  action  of  the
11    private  entity  contracted  to operate a bad check diversion
12    program, may submit a grievance to the State's  Attorney  who
13    may  then resolve the grievance. The private entity must give
14    notice to  the  offender  that  the  grievance  procedure  is
15    available.  The  grievance  procedure shall be established by
16    the State's Attorney.