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 HB2412 Engrossed -2- LRB093 08190 RLC 08397 b 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 HB2412 Engrossed -3- LRB093 08190 RLC 08397 b 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 HB2412 Engrossed -4- LRB093 08190 RLC 08397 b 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 HB2412 Engrossed -5- LRB093 08190 RLC 08397 b 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 HB2412 Engrossed -6- LRB093 08190 RLC 08397 b 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. HB2412 Engrossed -7- LRB093 08190 RLC 08397 b 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 HB2412 Engrossed -8- LRB093 08190 RLC 08397 b 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 HB2412 Engrossed -9- LRB093 08190 RLC 08397 b 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.