Public Act 93-0394
SB211 Enrolled LRB093 03803 RLC 03838 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 Section 17-1b as follows:
(720 ILCS 5/17-1b new)
Sec. 17-lb. State's Attorney's bad check diversion
program.
(a) In this Section:
"Offender" means a person charged with, or for whom
probable cause exists to charge the person with, deceptive
practices.
"Pretrial diversion" means the decision of a prosecutor
to refer an offender to a diversion program on condition that
the criminal charges against the offender will be dismissed
after a specified period of time, or the case will not be
charged, if the offender successfully completes the program.
"Restitution" means all amounts payable to a victim of
deceptive practices under the bad check diversion program
created under this Section, including the amount of the check
and any transaction fees payable to a victim as set forth in
subsection (g) but does not include amounts recoverable under
Section 3-806 of the Uniform Commercial Code and Section
17-1a of this Code.
(b) A State's Attorney may create within his or her
office a bad check diversion program for offenders who agree
to voluntarily participate in the program instead of
undergoing prosecution. The program may be conducted by the
State's Attorney or by a private entity under contract with
the State's Attorney. If the State's Attorney contracts with
a private entity to perform any services in operating the
program, the entity shall operate under the supervision,
direction, and control of the State's Attorney. Any private
entity providing services under this Section is not a
"collection agency" as that term is defined under the
Collection Agency Act.
(c) If an offender is referred to the State's Attorney,
the State's Attorney may determine whether the offender is
appropriate for acceptance in the program. The State's
Attorney may consider, but shall not be limited to
consideration of, the following factors:
(1) the amount of the check that was drawn or
passed;
(2) prior referrals of the offender to the program;
(3) whether other charges of deceptive practices
are pending against the offender;
(4) the evidence presented to the State's Attorney
regarding the facts and circumstances of the incident;
(5) the offender's criminal history; and
(6) the reason the check was dishonored by the
financial institution.
(d) The bad check diversion program may require an
offender to do one or more of the following:
(i) pay for, at his or her own expense, and
successfully complete an educational class held by the
State's Attorney or a private entity under contract with
the State's Attorney;
(ii) make full restitution for the offense;
(iii) pay a per-check administrative fee as set
forth in this Section.
(e) If an offender is diverted to the program, the
State's Attorney shall agree in writing not to prosecute the
offender upon the offender's successful completion of the
program conditions. The State's Attorney's agreement to
divert the offender shall specify the offenses that will not
be prosecuted by identifying the checks involved in the
transactions.
(f) The State's Attorney, or private entity under
contract with the State's Attorney, may collect a fee from an
offender diverted to the State's Attorney's bad check
diversion program. This fee may be deposited in a bank
account maintained by the State's Attorney for the purpose of
depositing fees and paying the expenses of the program. The
State's Attorney may require that the fee be paid directly to
a private entity that administers the program under a
contract with the State's Attorney. The amount of the
administrative fees collected by the State's Attorney under
the program may not exceed $35 per check. The county board
may, however, by ordinance, increase the fees allowed by this
Section if the increase is justified by an acceptable cost
study showing that the fees allowed by this Section are not
sufficient to cover the cost of providing the service.
(g) (1) The private entity shall be required to
maintain adequate general liability insurance of
$1,000,000 per occurrence as well as adequate coverage
for potential loss resulting from employee dishonesty.
The State's Attorney may require a surety bond payable to
the State's Attorney if in the State's Attorney's opinion
it is determined that the private entity is not
adequately insured or funded.
(2) (A) Each private entity that has a contract
with the State's Attorney to conduct a bad check
diversion program shall at all times maintain a separate
bank account in which all moneys received from the
offenders participating in the program shall be
deposited, referred to as a "Trust Account", except that
negotiable instruments received may be forwarded directly
to a victim of the deceptive practice committed by the
offender if that procedure is provided for by a writing
executed by the victim. Moneys received shall be so
deposited within 5 business days after posting to the
private entity's books of account. There shall be
sufficient funds in the trust account at all times to pay
the victims the amount due them.
(B) The trust account shall be established in a
bank, savings and loan association, or other
recognized depository which is federally or State
insured or otherwise secured as defined by rule. If
the account is interest bearing, the private entity
shall pay to the victim interest earned on funds on
deposit after the 60th day.
(C) Each private entity shall keep on file the
name of the bank, savings and loan association, or
other recognized depository in which each trust
account is maintained, the name of each trust
account, and the names of the persons authorized to
withdraw funds from each account. The private
entity, within 30 days of the time of a change of
depository or person authorized to make withdrawal,
shall update its files to reflect that change. An
examination and audit of a private entity's trust
accounts may be made by the State's Attorney as the
State's Attorney deems appropriate. A trust account
financial report shall be submitted annually on
forms acceptable to the State's Attorney.
(3) The State's Attorney may cancel a contract
entered into with a private entity under this Section for
any one or any combination of the following causes:
(A) Conviction of the private entity or the
principals of the private entity of any crime under
the laws of any U.S. jurisdiction which is a felony,
a misdemeanor an essential element of which is
dishonesty, or of any crime which directly relates
to the practice of the profession.
(B) A determination that the private entity
has engaged in conduct prohibited in item (4).
(4) The State's Attorney may determine whether the
private entity has engaged in the following prohibited
conduct:
(A) Using or threatening to use force or
violence to cause physical harm to an offender, his
or her family, or his or her property.
(B) Threatening the seizure, attachment, or
sale of an offender's property where such action can
only be taken pursuant to court order without
disclosing that prior court proceedings are
required.
(C) Disclosing or threatening to disclose
information adversely affecting an offender's
reputation for creditworthiness with knowledge the
information is false.
(D) Initiating or threatening to initiate
communication with an offender's employer unless
there has been a default of the payment of the
obligation for at least 30 days and at least 5 days
prior written notice, to the last known address of
the offender, of the intention to communicate with
the employer has been given to the employee, except
as expressly permitted by law or court order.
(E) Communicating with the offender or any
member of the offender's family at such a time of
day or night and with such frequency as to
constitute harassment of the offender or any member
of the offender's family. For purposes of this
clause (E) the following conduct shall constitute
harassment:
(i) Communicating with the offender or any
member of his or her family at any unusual time or
place or a time or place known or which should be
known to be inconvenient to the offender. In the
absence of knowledge of circumstances to the
contrary, a private entity shall assume that the
convenient time for communicating with a consumer is
after 8 o'clock a.m. and before 9 o'clock p.m. local
time at the offender's residence.
(ii) The threat of publication or publication
of a list of offenders who allegedly refuse to pay
restitution, except by the State's Attorney.
(iii) The threat of advertisement or
advertisement for sale of any restitution to coerce
payment of the restitution.
(iv) Causing a telephone to ring or engaging
any person in telephone conversation repeatedly or
continuously with intent to annoy, abuse, or harass
any person at the called number.
(v) Using profane, obscene or abusive
language in communicating with an offender, his or
her family, or others.
(vi) Disclosing or threatening to disclose
information relating to a offender's case to any
other person except the victim and appropriate law
enforcement personnel.
(vii) Disclosing or threatening to disclose
information concerning the alleged criminal act
which the private entity knows to be reasonably
disputed by the offender without disclosing the fact
that the offender disputes the accusation.
(viii) Engaging in any conduct which the
State's Attorney finds was intended to cause and did
cause mental or physical illness to the offender or
his or her family.
(ix) Attempting or threatening to enforce a
right or remedy with knowledge or reason to know
that the right or remedy does not exist.
(x) Except as authorized by the State's
Attorney, using any form of communication which
simulates legal or judicial process or which gives
the appearance of being authorized, issued or
approved by a governmental agency or official or by
an attorney at law when it is not.
(xi) Using any badge, uniform, or other
indicia of any governmental agency or official,
except as authorized by law or by the State's
Attorney.
(xii) Except as authorized by the State's
Attorney, conducting business under any name or in
any manner which suggests or implies that the
private entity is bonded if such private entity is
or is a branch of or is affiliated with any
governmental agency or court if such private entity
is not.
(xiii) Misrepresenting the amount of the
restitution alleged to be owed.
(xiv) Except as authorized by the State's
Attorney, representing that an existing restitution
amount may be increased by the addition of
attorney's fees, investigation fees, or any other
fees or charges when those fees or charges may not
legally be added to the existing restitution.
(xv) Except as authorized by the State's
Attorney, representing that the private entity is an
attorney at law or an agent for an attorney if the
entity is not.
(xvi) Collecting or attempting to collect any
interest or other charge or fee in excess of the
actual restitution or claim unless the interest or
other charge or fee is expressly authorized by the
State's Attorney, who shall determine what
constitutes a reasonable collection fee.
(xvii) Communicating or threatening to
communicate with an offender when the private entity
is informed in writing by an attorney that the
attorney represents the offender concerning the
claim, unless authorized by the attorney. If the
attorney fails to respond within a reasonable period
of time, the private entity may communicate with the
offender. The private entity may communicate with
the offender when the attorney gives his consent.
(xviii) Engaging in dishonorable, unethical,
or unprofessional conduct of a character likely to
deceive, defraud, or harm the public.
(5) The State's Attorney shall audit the accounts
of the bad check diversion program after notice in
writing to the private entity.
(6) Any information obtained by a private entity
that has a contract with the State's Attorney to conduct
a bad check diversion program is confidential information
between the State's Attorney and the private entity and
may not be sold or used for any other purpose but may be
shared with other authorized law enforcement agencies as
determined by the State's Attorney.
(h) The State's Attorney, or private entity under
contract with the State's Attorney, shall recover, in
addition to the face amount of the dishonored check or draft,
a transaction fee to defray the costs and expenses incurred
by a victim who received a dishonored check that was made or
delivered by the offender. The face amount of the dishonored
check or draft and the transaction fee shall be paid by the
State's Attorney or private entity under contract with the
State's Attorney to the victim as restitution for the
offense. The amount of the transaction fee must not exceed:
$25 if the face amount of the check or draft does not exceed
$100; $30 if the face amount of the check or draft is greater
than $100 but does not exceed $250; $35 if the face amount of
the check or draft is greater than $250 but does not exceed
$500; $40 if the face amount of the check or draft is greater
than $500 but does not exceed $1,000; and $50 if the face
amount of the check or draft is greater than $1,000.
(i) The offender, if aggrieved by an action of the
private entity contracted to operate a bad check diversion
program, may submit a grievance to the State's Attorney who
may then resolve the grievance. The private entity must give
notice to the offender that the grievance procedure is
available. The grievance procedure shall be established by
the State's Attorney.
Section 99. Effective date. This Act takes effect upon
becoming law.