Rep. Elizabeth Hernandez
Filed: 3/2/2012
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1 | AMENDMENT TO HOUSE BILL 5747
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2 | AMENDMENT NO. ______. Amend House Bill 5747 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Check Cashing Act is amended by adding | ||||||
5 | Sections 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, | ||||||
6 | 75, and 80 as follows: | ||||||
7 | (815 ILCS 315/5 new) | ||||||
8 | Sec. 5. Purpose. The purpose of this Act is to protect | ||||||
9 | consumers who cash checks at retail businesses that provide | ||||||
10 | check cashing services. This Act shall be construed as a | ||||||
11 | consumer protection law for all purposes. This Act shall be | ||||||
12 | liberally construed to effectuate its purpose. | ||||||
13 | (815 ILCS 315/10 new) | ||||||
14 | Sec. 10. Definitions. As used in this Act: | ||||||
15 | "Cash" means legal tender of the United States. |
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1 | "Check" means a check, draft, money order, traveler's | ||||||
2 | check, or negotiable instrument as defined by Article 3 of the | ||||||
3 | Uniform Commercial Code. | ||||||
4 | "Check casher" means a merchant, including any affiliate or | ||||||
5 | subsidiary of a merchant that engages in the check cashing | ||||||
6 | business. | ||||||
7 | "Check cashing business" means the business of converting | ||||||
8 | checks, drafts, money orders, traveler's checks, or other | ||||||
9 | payment instruments to cash for a fee. "Check cashing business" | ||||||
10 | does not include any transaction in which a customer presents a | ||||||
11 | check for the exact amount of any purchase. | ||||||
12 | "Consumer" means any natural person who, individually or | ||||||
13 | jointly with another consumer, cashes a check. | ||||||
14 | "Department" means the Department of Financial and | ||||||
15 | Professional Regulation. | ||||||
16 | "Incidental" means that in the course of a merchant's | ||||||
17 | business, at each location, the merchant's check fee income is | ||||||
18 | less than 20% of gross sales. | ||||||
19 | "Location" means a place of business at which activity | ||||||
20 | regulated by this Act occurs. | ||||||
21 | "Person" means an individual, partnership, limited | ||||||
22 | liability company, unincorporated association, corporation, or | ||||||
23 | other legal entity. | ||||||
24 | "Merchant" means a person, firm, association, partnership, | ||||||
25 | or corporation primarily engaged in the business of selling | ||||||
26 | tangible personal property at retail. |
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1 | "Secretary" means the Secretary of Financial and | ||||||
2 | Professional Regulation. | ||||||
3 | (815 ILCS 315/15 new) | ||||||
4 | Sec. 15. Engaging in the check cashing business. A merchant | ||||||
5 | may engage in the check cashing business only if it is | ||||||
6 | incidental to the business of selling tangible personal | ||||||
7 | property at retail. However, "check cashing business" does not | ||||||
8 | include any transaction in which a customer presents a check | ||||||
9 | for the exact amount of any purchase. The fees charged for | ||||||
10 | cashing a check shall not exceed the greater of $0.50 or 1% of | ||||||
11 | the face value of the check cashed. No license shall be | ||||||
12 | required as a condition for providing such services. This Act | ||||||
13 | does not affect the applicability of Sections 2 and 29 of the | ||||||
14 | Currency Exchange Act to any activity of a merchant that is not | ||||||
15 | expressly authorized by this Act. | ||||||
16 | (815 ILCS 315/20 new) | ||||||
17 | Sec. 20. Applicability. | ||||||
18 | (a) Except as otherwise provided in this Section, this Act | ||||||
19 | applies to any check casher that engages or offers to engage in | ||||||
20 | the check cashing business for a fee to Illinois consumers.
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21 | Anyone not a check casher, except as provided in this Section, | ||||||
22 | may not cash checks for a fee. | ||||||
23 | (b) The provisions of this Act apply to any person or | ||||||
24 | entity that seeks to evade its applicability by any device, |
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1 | subterfuge, or pretense whatsoever. | ||||||
2 | (c) This Act does not apply to any bank holding company, | ||||||
3 | financial holding company, bank, savings bank, savings and loan | ||||||
4 | association, credit union, or trust company, or any subsidiary | ||||||
5 | or affiliate thereof, that is authorized to do business under | ||||||
6 | the laws of this State or of the United States. | ||||||
7 | (d) A check casher that is an agent for a bank, savings | ||||||
8 | bank, savings and loan association, or credit union shall be | ||||||
9 | subject to all of the provisions of this Act. | ||||||
10 | (e) Currency exchanges licensed pursuant to the Currency | ||||||
11 | Exchange Act and in compliance with all relevant State and | ||||||
12 | federal rules and regulations are exempt from the provisions of | ||||||
13 | this Act. | ||||||
14 | (815 ILCS 315/25 new) | ||||||
15 | Sec. 25. Money received by the Department. All moneys | ||||||
16 | received by the Department under this Act shall be deposited in | ||||||
17 | the Financial Institutions Fund created under Section 6z-26 of | ||||||
18 | the State Finance Act. | ||||||
19 | (815 ILCS 315/30 new) | ||||||
20 | Sec. 30. Permitted fees. | ||||||
21 | (a) The fees charged by a check casher may not exceed the | ||||||
22 | greater of $0.50 or 1% of the face value of the check cashed. | ||||||
23 | No check casher shall charge or collect any sum for cashing a | ||||||
24 | check in excess of the fees allowed by this Act. If there are |
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1 | insufficient funds to cover a check, a check casher may charge | ||||||
2 | a fee not to exceed $25. Only one such fee may be collected by | ||||||
3 | the check casher per check. | ||||||
4 | (b) The schedule of fees and charges permitted under this | ||||||
5 | Section shall be conspicuously and continuously posted in at | ||||||
6 | least 14-point font in English and the dominant languages | ||||||
7 | spoken in each check casher's location. | ||||||
8 | (815 ILCS 315/35 new) | ||||||
9 | Sec. 35. Proceeds. A check casher shall issue the proceeds | ||||||
10 | of a check to a consumer in cash or cash equivalent. No check | ||||||
11 | casher shall issue proceeds of a check in an amount other than | ||||||
12 | the face value of the check, except for the deduction of check | ||||||
13 | cashing fees charged pursuant to this Act. | ||||||
14 | (815 ILCS 315/40 new) | ||||||
15 | Sec. 40. Deposits. Before a check casher deposits, with any | ||||||
16 | banking or other financial institution, a check cashed by the | ||||||
17 | check casher, the check must be endorsed with the name under | ||||||
18 | which the check casher is doing business. | ||||||
19 | (815 ILCS 315/45 new) | ||||||
20 | Sec. 45. Reporting requirements. A check casher shall | ||||||
21 | submit to the Secretary, or the Secretary's designee, any | ||||||
22 | suspicious activity reports or currency transaction reports as | ||||||
23 | are required to be submitted to federal authorities pursuant to |
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1 | the federal Bank Secrecy Act, and regulations and | ||||||
2 | administrative orders related thereto, as amended, within the | ||||||
3 | periods of time as required by the federal Bank Secrecy Act and | ||||||
4 | regulations. A check casher may submit a copy of any report to | ||||||
5 | the Secretary, or Secretary's designee, that is filed with that | ||||||
6 | federal authority. The Secretary may adopt rules or require | ||||||
7 | additional reports as he or she deems necessary to ensure | ||||||
8 | effective enforcement of this Section. | ||||||
9 | (815 ILCS 315/50 new) | ||||||
10 | Sec. 50. Forged checks. A check casher shall post in a | ||||||
11 | conspicuous location, clearly visible to all patrons, a | ||||||
12 | statement printed in at least 14-point font in plain language, | ||||||
13 | in English and in the dominant languages spoken in each check | ||||||
14 | casher's location, informing the public that cashing a forged | ||||||
15 | check is illegal and those who knowingly cash forged checks | ||||||
16 | will be prosecuted pursuant to the applicable provisions of the | ||||||
17 | Criminal Code of 1961. | ||||||
18 | (815 ILCS 315/55 new) | ||||||
19 | Sec. 55. Examination of check cashers; records. | ||||||
20 | (a) A check casher shall keep and use books, accounts, and | ||||||
21 | records that will enable the Secretary to determine whether the | ||||||
22 | check casher is complying with the provisions of this Act and | ||||||
23 | maintain any other records as required by the Secretary. Check | ||||||
24 | cashers shall preserve their books, accounts, and records for 5 |
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1 | years from the date of each transaction. | ||||||
2 | (b) For the purpose of discovering violations of this Act | ||||||
3 | or securing information lawfully required in this Section, the | ||||||
4 | Department may at any time, and as often as may be determined, | ||||||
5 | investigate the check casher's books, accounts, records, | ||||||
6 | files, and any other document related to the check casher's | ||||||
7 | check cashing business activities. The Secretary and his or her | ||||||
8 | designee shall have free access to the offices and places of | ||||||
9 | business, books, accounts, papers, records, files, safes, and | ||||||
10 | vaults of all check cashers. | ||||||
11 | (c) Confidentiality. All information collected by the | ||||||
12 | Department in the course of an examination or investigation of | ||||||
13 | a check casher including, but not limited to, any complaint | ||||||
14 | against a check casher filed with the Department and | ||||||
15 | information collected to investigate any such complaint, shall | ||||||
16 | be maintained for the confidential use of the Department and | ||||||
17 | may not be disclosed. The Department may not disclose such | ||||||
18 | information to anyone other than law enforcement officials, | ||||||
19 | other regulatory agencies that have an appropriate regulatory | ||||||
20 | interest as determined by the Secretary, or a party presenting | ||||||
21 | a lawful subpoena to the Department. Information disclosed to a | ||||||
22 | federal, State, county, or local law enforcement agency may not | ||||||
23 | be disclosed by the agency for any purpose to any other agency | ||||||
24 | or person. A formal complaint filed against a check casher by | ||||||
25 | the Department or any order issued by the Department against a | ||||||
26 | check casher shall be a public record, except as otherwise |
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1 | prohibited by law. | ||||||
2 | (815 ILCS 315/60 new) | ||||||
3 | Sec. 60. Prohibited acts. A check casher may not commit, or | ||||||
4 | have committed on behalf of the check casher, any of the | ||||||
5 | following acts: | ||||||
6 | (1) Using any device or agreement that would have the | ||||||
7 | effect of charging or collecting more fees or charges than | ||||||
8 | allowed by this Act, including, but not limited to, entering | ||||||
9 | into a different type of transaction with the consumer. | ||||||
10 | (2) Engaging in unfair, deceptive, or fraudulent practices | ||||||
11 | in the cashing of a check. | ||||||
12 | (3) Using or causing to be published or disseminated any | ||||||
13 | advertising communication that contains false, misleading, or | ||||||
14 | deceptive statements or representations. No check casher may | ||||||
15 | advertise in any manner so as to indicate or imply that its | ||||||
16 | rates or charges are in any way recommended, approved, set, or | ||||||
17 | established by the State government or by this Act. | ||||||
18 | (4) Engaging in the business of making loans of money, | ||||||
19 | discounting notes, bills of exchange, or other evidences of | ||||||
20 | debt, or accepting deposits or bailments of money or other | ||||||
21 | items except as provided by this Act. | ||||||
22 | (5) Extending credit. | ||||||
23 | (6) Using or attempting to use the check provided by the | ||||||
24 | consumer as collateral for a transaction unrelated to a | ||||||
25 | transaction authorized by this Act. |
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1 | (7) Charging any fees or charges other than those | ||||||
2 | specifically authorized by this Act or under the Uniform | ||||||
3 | Commercial Code. | ||||||
4 | (8) Threatening to take any action against a consumer that | ||||||
5 | is prohibited by this Act. | ||||||
6 | (815 ILCS 315/65 new) | ||||||
7 | Sec. 65. Enforcement and remedies. | ||||||
8 | (a) The remedies provided in this Act are cumulative and | ||||||
9 | apply to persons or entities subject to this Act. | ||||||
10 | (b) Any material violation of this Act, including the | ||||||
11 | commission of an act prohibited under Section 60, constitutes a | ||||||
12 | violation of the Consumer Fraud and Deceptive Business | ||||||
13 | Practices Act. | ||||||
14 | (c) Subject to the Illinois Administrative Procedure Act, | ||||||
15 | the Secretary may hold hearings, make findings of fact and | ||||||
16 | conclusions of law, issue cease and desist orders, issue fines | ||||||
17 | of up to $10,000 per violation, and refer the matter to the | ||||||
18 | appropriate law enforcement agency for prosecution under this | ||||||
19 | Act. All proceedings shall be open to the public. | ||||||
20 | (d) The Secretary may issue a cease and desist order to any | ||||||
21 | check casher when in the opinion of the Secretary the check | ||||||
22 | casher is violating or is about to violate any provision of | ||||||
23 | this Act or any rule or requirement imposed in writing by the | ||||||
24 | Department as a condition of granting any authorization | ||||||
25 | permitted by this Act. The cease and desist order permitted by |
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1 | this subsection (d) is effective as of the date of service and | ||||||
2 | may be issued prior to a hearing. The Secretary shall serve | ||||||
3 | notice of his or her action, including, but not limited to, a | ||||||
4 | statement of the reasons for the action, either personally or | ||||||
5 | by certified mail, return receipt requested. Service by | ||||||
6 | certified mail shall be deemed completed when the notice is | ||||||
7 | deposited in the U.S. Mail. Within 10 days of service of the | ||||||
8 | cease and desist order, the check casher may request, in | ||||||
9 | writing, a hearing. | ||||||
10 | If it is determined that the Secretary had the authority to | ||||||
11 | issue the cease and desist order, he or she may issue such | ||||||
12 | orders as may be reasonably necessary to correct, eliminate, or | ||||||
13 | remedy the conduct. The powers vested in the Secretary by this | ||||||
14 | subsection (d) are in addition to any and all other powers and | ||||||
15 | remedies vested in the Secretary by law, and nothing in this | ||||||
16 | subsection (d) shall be construed as requiring that the | ||||||
17 | Secretary shall employ the power conferred in this subsection | ||||||
18 | instead of or as a condition precedent to the exercise of any | ||||||
19 | other power or remedy vested in the Secretary. | ||||||
20 | (e) The Secretary may, after 10 days' notice by registered | ||||||
21 | mail to the check casher at the check casher's business address | ||||||
22 | stating the contemplated action and in general the grounds | ||||||
23 | therefor, fine the check casher an amount not exceeding $10,000 | ||||||
24 | per violation if he or she finds that the check casher has | ||||||
25 | failed to comply with any provision of this Act or any order, | ||||||
26 | decision, finding, rule, regulation, or direction of the |
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1 | Secretary lawfully made pursuant to the authority of this Act. | ||||||
2 | The Secretary may fine only the particular location with | ||||||
3 | respect to which grounds for the fine occur or exist, but if | ||||||
4 | the Secretary finds that grounds for the fine are of general | ||||||
5 | application to all locations or to more than one location of | ||||||
6 | the check casher, the Secretary may fine every check casher's | ||||||
7 | location to which the grounds apply. | ||||||
8 | An order assessing a fine shall take effect upon service of | ||||||
9 | the order unless the check casher requests a hearing within 10 | ||||||
10 | days of service of the order pursuant to this Section. In the | ||||||
11 | event a hearing is requested, the order shall be stayed until a | ||||||
12 | final administrative order is entered. | ||||||
13 | The hearing shall be held at the time and place designated | ||||||
14 | by the Secretary. The Secretary and any administrative law | ||||||
15 | judge designated by him or her shall have the power to | ||||||
16 | administer oaths and affirmations, subpoena witnesses and | ||||||
17 | compel their attendance, take evidence, and require the | ||||||
18 | production of books, papers, correspondence, and other records | ||||||
19 | or information that he or she considers relevant or material to | ||||||
20 | the inquiry. | ||||||
21 | (f) The costs of administrative hearings conducted | ||||||
22 | pursuant to this Section shall be paid by the check casher. | ||||||
23 | (815 ILCS 315/70 new) | ||||||
24 | Sec. 70. Rulemaking. The Department may make and enforce | ||||||
25 | such reasonable rules, regulations, directions, orders, |
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1 | decisions, and findings as the execution and enforcement of the | ||||||
2 | provisions of this Act require, and as are not inconsistent | ||||||
3 | therewith. All rules, regulations, and directions of a general | ||||||
4 | character shall be made available to all check cashers in | ||||||
5 | electronic form. | ||||||
6 | (815 ILCS 315/75 new) | ||||||
7 | Sec. 75. Judicial review. All final administrative | ||||||
8 | decisions of the Department under this Act are subject to | ||||||
9 | judicial review pursuant to the provisions of the | ||||||
10 | Administrative Review Law and any rules adopted pursuant | ||||||
11 | thereto. | ||||||
12 | (815 ILCS 315/80 new) | ||||||
13 | Sec. 80. No waivers. There shall be no waiver of any | ||||||
14 | provision of this Act.
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15 | (815 ILCS 315/1 rep.)
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16 | (815 ILCS 315/2 rep.)
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17 | Section 900. The Check Cashing Act is amended by repealing | ||||||
18 | Sections 1 and 2. | ||||||
19 | Section 910. The Consumer Fraud and Deceptive Business | ||||||
20 | Practices Act is amended by changing Section 2Z as follows:
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21 | (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
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1 | Sec. 2Z. Violations of other Acts. Any person who knowingly | ||||||
2 | violates
the Automotive Repair Act, the Automotive Collision | ||||||
3 | Repair Act,
the Home Repair and Remodeling Act,
the Dance | ||||||
4 | Studio Act,
the Physical Fitness Services Act,
the Hearing | ||||||
5 | Instrument Consumer Protection Act,
the Illinois Union Label | ||||||
6 | Act,
the Job Referral and Job Listing Services Consumer | ||||||
7 | Protection Act,
the Travel Promotion Consumer Protection Act,
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8 | the Credit Services Organizations Act,
the Automatic Telephone | ||||||
9 | Dialers Act,
the Pay-Per-Call Services Consumer Protection | ||||||
10 | Act,
the Telephone Solicitations Act,
the Illinois Funeral or | ||||||
11 | Burial Funds Act,
the Cemetery Oversight Act, the Cemetery Care | ||||||
12 | Act,
the Safe and Hygienic Bed Act,
the Pre-Need Cemetery Sales | ||||||
13 | Act,
the High Risk Home Loan Act, the Payday Loan Reform Act, | ||||||
14 | the Mortgage Rescue Fraud Act, subsection (a) or (b) of Section | ||||||
15 | 3-10 of the
Cigarette Tax Act, subsection
(a) or (b) of Section | ||||||
16 | 3-10 of the Cigarette Use Tax Act, the Electronic
Mail Act, the | ||||||
17 | Internet Caller Identification Act, paragraph (6)
of
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18 | subsection (k) of Section 6-305 of the Illinois Vehicle Code, | ||||||
19 | Section 11-1431, 18d-115, 18d-120, 18d-125, 18d-135, 18d-150, | ||||||
20 | or 18d-153 of the Illinois Vehicle Code, Article 3 of the | ||||||
21 | Residential Real Property Disclosure Act, the Automatic | ||||||
22 | Contract Renewal Act, the Check Cashing Act, or the Personal | ||||||
23 | Information Protection Act commits an unlawful practice within | ||||||
24 | the meaning of this Act.
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25 | (Source: P.A. 96-863, eff. 1-19-10; 96-1369, eff. 1-1-11; | ||||||
26 | 96-1376, eff. 7-29-10; 97-333, eff. 8-12-11.) |
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1 | Section 996. Severability. The provisions of this Act are | ||||||
2 | severable under Section 1.31 of the Statute on Statutes. | ||||||
3 | Section 999. Effective date. This Act takes effect 180 days | ||||||
4 | after becoming law.".
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