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Sen. Christopher Belt
Filed: 4/8/2024
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1 | | AMENDMENT TO SENATE BILL 2234
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2 | | AMENDMENT NO. ______. Amend Senate Bill 2234, AS AMENDED, |
3 | | by replacing everything after the enacting clause with the |
4 | | following: |
5 | | "Section 1. Short title. This Act may be cited as the Small |
6 | | Business Financing Transparency Act. |
7 | | Section 2. Purpose and construction. The purpose of this |
8 | | Act is to protect business owners. This Act shall be liberally |
9 | | construed to effectuate its purpose. |
10 | | Section 5. Definitions. As used in this Act: |
11 | | "Applicant" means a person who has submitted an |
12 | | application for a registration under this Act. |
13 | | "Closed-end financing" means a closed-end extension of |
14 | | credit, secured or unsecured, recourse or nonrecourse, |
15 | | including equipment financing that does not meet the |
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1 | | definition of a lease under Section 2A-103 of the Uniform |
2 | | Commercial Code, that the recipient does not intend to use for |
3 | | personal, family, or household purposes. "Closed-end |
4 | | financing" includes financing with an established principal |
5 | | amount and duration. |
6 | | "Commercial financing database" means a reporting database |
7 | | certified by the Department as effective in receiving a report |
8 | | of commercial financing made under this Act. |
9 | | "Commercial financing database provider" means an entity |
10 | | that provides a reporting database certified by the Department |
11 | | under this Act. |
12 | | "Commercial financing" means open-end financing, |
13 | | closed-end financing, sales-based financing, factoring |
14 | | transaction, or other form of financing, the proceeds of which |
15 | | the recipient does not intend to use primarily for personal, |
16 | | family, or household purposes. For purposes of determining |
17 | | whether a financing is a commercial financing, the provider |
18 | | may rely on any statement of intended purposes by the |
19 | | recipient. The statement may be a separate statement signed by |
20 | | the recipient; may be contained in the financing application, |
21 | | financing agreement, or other document signed or consented to |
22 | | by the recipient; or may be provided orally by the recipient so |
23 | | long as it is documented in the recipient's application file |
24 | | by the provider. Electronic signatures and consents are valid |
25 | | for purposes of the foregoing sentence. The provider shall not |
26 | | be required to ascertain that the proceeds of a commercial |
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1 | | financing are used in accordance with the recipient's |
2 | | statement of intended purposes. |
3 | | "Department" means the Department of Financial and |
4 | | Professional Regulation. |
5 | | "Division of Financial Institutions" or "Division" means |
6 | | the Division of Financial Institutions of the Department of |
7 | | Financial and Professional Regulation. |
8 | | "Factoring transaction" means an accounts receivable |
9 | | purchase transaction that includes an agreement to purchase, |
10 | | transfer, or sell a legally enforceable claim for payment held |
11 | | by a recipient for goods the recipient has supplied or |
12 | | services the recipient has rendered that have been ordered but |
13 | | for which payment has not yet been made. |
14 | | "Finance charge" means the cost of financing as a dollar |
15 | | amount. "Finance charge" includes any charge payable directly |
16 | | or indirectly by the recipient and imposed directly or |
17 | | indirectly by the provider as an incident to or a condition of |
18 | | the extension of financing. "Finance charge" includes any |
19 | | charges as determined by the Secretary. For the purposes of an |
20 | | open-end financing, "finance charge" means the maximum amount |
21 | | of credit available to the recipient, in each case, that is |
22 | | drawn and held for the duration of the term or draw period. For |
23 | | the purposes of a factoring transaction, "finance charge" |
24 | | includes the discount taken on the face value of the accounts |
25 | | receivable. In addition, the finance charge shall include any |
26 | | charges determined by the Secretary. |
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1 | | "Open-end financing" means an agreement for one or more |
2 | | extensions of open-end credit, secured or unsecured, that the |
3 | | recipient does not intend to use the proceeds of primarily for |
4 | | personal, family, or household purposes. "Open-end financing" |
5 | | includes credit extended by a provider under a plan in which: |
6 | | (i) the provider reasonably contemplates repeated |
7 | | transactions; (ii) the provider may impose a finance charge |
8 | | from time to time on an outstanding unpaid balance; and (iii) |
9 | | the amount of credit that may be extended to the recipient |
10 | | during the term of the plan is generally made available to the |
11 | | extent that any outstanding balance is repaid. |
12 | | "Person" means an individual, entity, corporation, |
13 | | partnership, limited liability company, joint venture, |
14 | | association, joint stock company, trust, or unincorporated |
15 | | organization, including, but not limited to, a sole |
16 | | proprietorship. |
17 | | "Provider" means a person who extends a specific offer of |
18 | | commercial financing to a recipient. "Provider", unless |
19 | | otherwise exempt, includes a person who solicits and presents |
20 | | specific offers of commercial financing on behalf of a third |
21 | | party. The mere extension of a specific offer or provision of |
22 | | disclosures for a commercial financing, is not sufficient to |
23 | | conclude that a provider is originating, making, funding, or |
24 | | providing commercial financing. "Provider" does not include: |
25 | | (1) a bank, trust company, or industrial loan company, |
26 | | or any subsidiary or affiliate thereof, doing business |
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1 | | under the authority of, or in accordance with, a license, |
2 | | certificate or charter issued by the United States, this |
3 | | State, or any other state, district, territory, or |
4 | | commonwealth of the United States that is authorized to |
5 | | transact business in this State; |
6 | | (2) a federally chartered savings and loan |
7 | | association, federal savings bank, or federal credit |
8 | | union, or any subsidiary or affiliate thereof, that is |
9 | | authorized to transact business in this State; |
10 | | (3) a savings and loan association, savings bank, or |
11 | | credit union, or any subsidiary or affiliate thereof, |
12 | | organized under the laws of this State or any other state |
13 | | that is authorized to transact business in this State; |
14 | | (4) a lender regulated under the federal Farm Credit |
15 | | Act; and |
16 | | (5) a person acting as a technology services provider |
17 | | to an entity described by sub-paragraphs (1), (2), or (3) |
18 | | for use as part of that entity's commercial financing |
19 | | program, provided the person has no interest, or |
20 | | arrangement, or agreement to purchase any interest in the |
21 | | commercial financing extended by the entity in connection |
22 | | with the program. |
23 | | "Recipient" means a person located in the State of |
24 | | Illinois who applies for commercial financing and is made a |
25 | | specific offer of commercial financing by a provider. For the |
26 | | purpose of determining whether a recipient is located in |
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1 | | Illinois, a provider may rely upon (i) any written |
2 | | representation by the recipient as to whether it is located in |
3 | | Illinois; or (ii) the business address provided by the |
4 | | recipient in the application for commercial financing showing |
5 | | that the recipient is located in Illinois. "Recipient" |
6 | | includes an authorized representative of a person who applies |
7 | | for commercial financing and is made a specific offer of |
8 | | commercial financing by a provider. "Recipient" does not |
9 | | include a person acting as a broker is not a recipient in a |
10 | | transaction they broker. |
11 | | "Sales-based financing" means a transaction that is repaid |
12 | | by the recipient to the provider, over time, as a percentage of |
13 | | sales or revenue, in which the payment amount may increase or |
14 | | decrease according to the volume of sales made or revenue |
15 | | received by the recipient or a transaction that includes a |
16 | | true-up mechanism where the financing is repaid as a fixed |
17 | | payment but provides for a reconciliation process that adjusts |
18 | | the payment to an amount that is a percentage of sales or |
19 | | revenue. |
20 | | "Secretary" means the Secretary of Financial and |
21 | | Professional Regulation or a person authorized by the |
22 | | Secretary to perform the Secretary's responsibilities under |
23 | | this Act. |
24 | | "Specific offer" means the specific terms of commercial |
25 | | financing, including price or amount, that is quoted to a |
26 | | recipient based on information obtained from or about the |
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1 | | recipient that, if accepted by a recipient, shall be binding |
2 | | on the provider, as applicable, subject to any specific |
3 | | requirements stated in the specific terms. |
4 | | "True-up mechanism" means, with respect to sales-based |
5 | | financing, a contractual arrangement with all the following |
6 | | elements: |
7 | | (1) The financer receives periodic payments based upon |
8 | | a pre-set amount stated in the contract. |
9 | | (2) The contract allows the recipient to request, or |
10 | | the financer to initiate, adjustments to the payment |
11 | | amount, credits to the recipient, or charges to the |
12 | | recipient after execution of the contract, so that the |
13 | | total amount paid by the recipient more closely reflects a |
14 | | split rate listed in the contract. |
15 | | Section 10. Applicability. |
16 | | (a) Except as otherwise provided in this Section, this Act |
17 | | applies to any person that offers or provides commercial |
18 | | financing in Illinois or is otherwise a provider. |
19 | | (b) The provisions of this Act apply to any person that |
20 | | seeks to evade its applicability by any device, subterfuge, or |
21 | | pretense whatsoever. |
22 | | (c) The provisions of this Act apply to any person that |
23 | | aids or facilitates a violation of this Act. |
24 | | (d) The provisions of this Act do not apply to: |
25 | | (1) a bank, trust company, or industrial loan company |
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1 | | doing business under the authority of, or in accordance |
2 | | with, a license, certificate or charter issued by the |
3 | | United States, this State, or any other state, district, |
4 | | territory, or commonwealth of the United States that is |
5 | | authorized to transact business in this State; |
6 | | (2) a federally chartered savings and loan |
7 | | association, federal savings bank, or federal credit union |
8 | | that is authorized to transact business in this State; |
9 | | (3) a savings and loan association, savings bank, or |
10 | | credit union organized under the laws of this State or any |
11 | | other state that is authorized to transact business in |
12 | | this State; |
13 | | (4) a lender regulated under the federal Farm Credit |
14 | | Act; and |
15 | | (5) a person acting in the person's capacity as a |
16 | | technology services provider to an entity described by |
17 | | sub-paragraphs (1), (2), or (3) for use as part of that |
18 | | entity's commercial financing program, provided the person |
19 | | has no interest, or arrangement, or agreement to purchase |
20 | | any interest in the commercial financing extended by the |
21 | | entity in connection with the program. |
22 | | Section 15. Division of Financial Institutions. This Act |
23 | | shall be administered by the Division on behalf of the |
24 | | Secretary. |
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1 | | Section 20. Registration requirement. |
2 | | (a) It is unlawful for a person to engage in the conduct |
3 | | regulated by this Act unless the person: (i) registers with |
4 | | the Secretary in accordance with this Section; and (ii) |
5 | | maintains a valid registration. An officer or employee of a |
6 | | person required to register under this Section is not required |
7 | | to register if the person for whom the individual is an officer |
8 | | or employee is registered. |
9 | | (b) Application for registration and renewal of |
10 | | registration shall be made in accordance with this Act and |
11 | | with the requirements of the multistate licensing system, if |
12 | | required by the Secretary. The application shall be in |
13 | | writing, under oath, and on a form obtained from and |
14 | | prescribed by the Secretary. The Secretary may change or |
15 | | update the form to carry out the purposes of this Act. The |
16 | | Secretary may require part or all of the application to be |
17 | | submitted electronically, with attestation, to the multistate |
18 | | licensing system. |
19 | | (c) Registrants shall apply to renew their registration |
20 | | every calendar year. Registrants may submit properly completed |
21 | | renewal application forms and filing fees 60 days before the |
22 | | registration expiration date, and the same shall be received |
23 | | by the Secretary at least 30 days before the registration |
24 | | expiration date. Absent a written extension from the |
25 | | Department, a registration shall expire on December 31 of each |
26 | | year if a registrant fails to timely submit a properly |
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1 | | completed renewal application and fees. |
2 | | (d) Upon receipt of the registration, a registrant is |
3 | | authorized to engage in conduct regulated by this Act. The |
4 | | registration shall remain in full force and effect until it |
5 | | expires, is withdrawn by the registrant, or is revoked or |
6 | | suspended as provided in this Act. |
7 | | (e) To register under this Section, an applicant shall: |
8 | | (1) pay a registration fee of $2,500 to the |
9 | | Department; and |
10 | | (2) submit a registration statement containing the |
11 | | information described in subsection (g). |
12 | | (f) To renew a registration under this Section, a person |
13 | | shall: |
14 | | (1) pay the annual fee of $2,500 to the Department; |
15 | | and |
16 | | (2) submit a renewal statement containing the |
17 | | information described in subsection (g). |
18 | | (g) A registration or renewal statement must be submitted |
19 | | to the Secretary or to a multistate licensing system as |
20 | | approved by the Secretary. The registration or renewal |
21 | | statement shall include: |
22 | | (1) the name of the person; |
23 | | (2) the name in which the business will be transacted |
24 | | if different from that required in paragraph (1), which |
25 | | must be properly registered as an assumed corporate name |
26 | | under the Business Corporation Act of 1983, an assumed |
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1 | | limited liability company name under the Limited Liability |
2 | | Company Act, or an assumed business name under the Assumed |
3 | | Business Name Act; |
4 | | (3) the address of the person's principal business |
5 | | office; |
6 | | (4) the address of each office in this State at which |
7 | | the person engages in commercial financing transactions; |
8 | | (5) if the person engages in commercial financing |
9 | | transactions in this State but does not maintain an office |
10 | | in this State, a brief description of the manner in which |
11 | | the business is conducted; |
12 | | (6) if the person conducts business through an agent |
13 | | located in this State, the name and address in this State |
14 | | of the person's agent properly registered with the |
15 | | Secretary of State; |
16 | | (7) for a registration application, whether the |
17 | | person, an officer, director, manager, operator, or |
18 | | principal of the person, or an employee of the person |
19 | | engaged in the business of commercial financing has been |
20 | | convicted of a crime involving an act of fraud, |
21 | | dishonesty, breach of trust, or money laundering; if the |
22 | | applicant answers yes to this paragraph, then the |
23 | | applicant shall report the names, titles or relationship |
24 | | to the applicant or registrant, and the nature of the |
25 | | covered crime; |
26 | | (8) for a renewal application, whether, in the past |
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1 | | year, the person, an officer, director, manager, operator, |
2 | | or principal of the person, or an employee of the person |
3 | | engaged in the business of commercial financing has been |
4 | | convicted of a crime involving an act of fraud, |
5 | | dishonesty, breach of trust, or money laundering; if the |
6 | | registrant answers yes to this paragraph, then the |
7 | | registrant shall report the names, titles or relationship |
8 | | to the applicant or registrant, and the nature of the |
9 | | covered crime; |
10 | | (9) a statement of the person's commitment to abide by |
11 | | the requirements of registering persons under this Act, |
12 | | including providing the required financing disclosures in |
13 | | commercial financing offers as required under Sections 45, |
14 | | 50, 55, 60, 65, and 70 of this Act; |
15 | | (10) a copy of the commercial financing disclosure |
16 | | form to be used for each type of commercial financing that |
17 | | the person offers or intends to offer, and a description |
18 | | of when the disclosure will be provided to the recipient; |
19 | | (11) information on financing offers presented by |
20 | | registrant in Illinois in the previous calendar year, |
21 | | including the number of financing offers made, the number |
22 | | of financing offers made in which the disclosures as |
23 | | required by Sections 45, 50, 55, 60, 65, and 70 were |
24 | | offered, and the number of financing offers accepted by |
25 | | recipients; and |
26 | | (12) any other information deemed necessary by the |
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1 | | Secretary. |
2 | | (h) The Secretary may refuse to accept or renew a |
3 | | registration if: |
4 | | (1) the Secretary determines that the person has not |
5 | | complied with the provisions of this Act, its implementing |
6 | | rules, or other laws that apply to the person; or |
7 | | (2) the Secretary determines that there is substantial |
8 | | continuity between the person and any violator of this |
9 | | Act, its implementing rules, or other laws that apply to |
10 | | the person or related violator. |
11 | | (i) The Department shall adopt and amend such rules as may |
12 | | be required for the proper administration and enforcement of |
13 | | this Section, including rules providing for the form, content, |
14 | | and filing of a registration and renewal statement. |
15 | | Section 25. Additional registration information. |
16 | | (a) In order to fulfill the purposes of this Act, the |
17 | | Secretary may establish relationships or contracts with a |
18 | | multistate licensing system or other persons to collect and |
19 | | maintain records and process fees related to registrants or |
20 | | other persons subject to this Act. |
21 | | (b) For the purposes of this Section, and to reduce the |
22 | | points of contact that the Secretary may have to maintain, the |
23 | | Secretary may use a multistate licensing system as a |
24 | | channeling agent for requesting and distributing information |
25 | | to and from any source. |
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1 | | (c) Each registrant shall furnish to the Secretary or |
2 | | multistate licensing system an updated business address within |
3 | | 10 days after any change of business address. |
4 | | Section 30. Registration expiration. No activity regulated |
5 | | by this Act shall be conducted by a registrant whose |
6 | | registration has expired. The Secretary may, within the |
7 | | Secretary's discretion, reinstate an expired registration upon |
8 | | payment of the renewal fee, payment of a reactivation fee |
9 | | equal to 5 times the renewal fee, submission of a completed |
10 | | renewal application, and an affidavit of good cause for late |
11 | | renewal. |
12 | | Section 35. Functions; powers; duties. The functions, |
13 | | powers, and duties of the Secretary include, but are not |
14 | | limited to, the following: |
15 | | (1) to issue or refuse to issue any registration or |
16 | | renewal; |
17 | | (2) to revoke or suspend for cause any registration |
18 | | issued under this Act; |
19 | | (3) to keep records of all registrations issued under |
20 | | this Act; |
21 | | (4) to receive, consider, investigate, and act upon |
22 | | complaints made by any person in connection with any |
23 | | registration in this State or unregistered commercial |
24 | | financing activity of any person; |
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1 | | (5) to adopt rules necessary and proper for the |
2 | | administration of this Act, to protect consumers and |
3 | | financing recipients, to promote fair competition, and as |
4 | | otherwise authorized by this Act; |
5 | | (6) to subpoena documents and witnesses and compel |
6 | | their attendance and production, to administer oaths, and |
7 | | to require the production of any books, papers, or other |
8 | | materials relevant to any inquiry authorized by this Act |
9 | | or its implementing rules; |
10 | | (7) to issue orders against any person if the |
11 | | Secretary has reasonable cause to believe that an unsafe, |
12 | | unsound, or unlawful practice has occurred, is occurring, |
13 | | or is about to occur; if any person is violating, or is |
14 | | about to violate any law, rule, or written agreement with |
15 | | the Secretary; or for the purpose of administering the |
16 | | provisions of this Act and any rule adopted in accordance |
17 | | with this Act; |
18 | | (8) to address any inquiries to any registrant, or the |
19 | | owners, officers, or directors thereof, in relation to its |
20 | | activities and conditions, or any other matter connected |
21 | | with its affairs, and any registrant or person so |
22 | | addressed shall promptly reply in writing to those |
23 | | inquiries. The Secretary may also require reports from any |
24 | | registrant at any time the Secretary deems desirable; |
25 | | (9) to enforce provisions of this Act and its |
26 | | implementing rules; |
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1 | | (10) to levy fees, including, but not limited to, |
2 | | assessments, registration fees, civil penalties, and |
3 | | charges for services performed in administering this Act. |
4 | | The Secretary may establish and modify fees by rule. The |
5 | | aggregate of all fees collected by the Secretary under |
6 | | this Act shall be paid promptly after receipt into the |
7 | | Financial Institution Fund. The amounts deposited into the |
8 | | Financial Institution Fund shall be used for the ordinary |
9 | | and contingent expenses of the Department. Nothing in this |
10 | | Act prevents paying expenses including salaries, |
11 | | retirement, social security, and State-paid insurance of |
12 | | State employees, or any other expenses incurred under this |
13 | | Act by appropriation from the General Revenue Fund or any |
14 | | other fund; |
15 | | (11) to issue refunds to registrants of any |
16 | | overpayment for good cause shown; |
17 | | (12) to appoint experts and special assistants as |
18 | | needed to effectively and efficiently administer this Act; |
19 | | (13) to conduct hearings for the purpose of |
20 | | suspensions, denials, or revocations of registrations, |
21 | | fining, or other discipline of registrants or unregistered |
22 | | persons or entities; |
23 | | (14) to exercise visitorial power over a registrant: |
24 | | (A) if the Secretary has reasonable cause to believe that |
25 | | an unsafe, unsound, or unlawful practice has occurred, is |
26 | | occurring, or is about to occur; or (B) if a person is |
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1 | | violating or is about to violate any law, rule, or written |
2 | | agreement with the Secretary; and |
3 | | (15) to enter into cooperative agreements with state |
4 | | regulatory authorities of other states to provide for |
5 | | examination of corporate offices or branches of those |
6 | | states, participate in joint examinations with other |
7 | | regulators, and to accept reports of the examinations: (A) |
8 | | if the Secretary has reasonable cause to believe that an |
9 | | unsafe, unsound, or unlawful practice has occurred, is |
10 | | occurring, or is about to occur; or (B) if a person is |
11 | | violating or is about to violate any law, rule, or written |
12 | | agreement with the Secretary; |
13 | | (16) to impose civil penalties of up to $200 per day |
14 | | against a registrant for failing to respond to a |
15 | | regulatory request or reporting requirement; and |
16 | | (17) to enter into agreements in connection with a |
17 | | multistate licensing system. |
18 | | Section 40. Subpoena power of the Secretary. |
19 | | (a) The Secretary may issue and serve subpoenas and |
20 | | subpoenas duces tecum to compel the attendance of witnesses |
21 | | and the production of all books, accounts, records, and other |
22 | | documents and materials relevant to an investigation. The |
23 | | Secretary, or the Secretary's duly authorized representative, |
24 | | may administer oaths and affirmations to any person. |
25 | | (b) If a person does not comply with the Secretary's |
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1 | | subpoena or subpoena duces tecum, the Secretary may, through |
2 | | the Attorney General, petition the circuit court of the county |
3 | | in which the subpoenaed person resides or has its principal |
4 | | place of business for an order requiring the subpoenaed person |
5 | | to testify and to comply with the subpoena duces tecum. The |
6 | | court may grant injunctive relief restraining the person from |
7 | | engaging in activity regulated by this Act. The court may |
8 | | grant other relief, including, but not limited to, the |
9 | | restraint, by injunction or appointment of a receiver, of any |
10 | | transfer, pledge, assignment, or other disposition of the |
11 | | person's assets, concealment, destruction, or other |
12 | | disposition of books, accounts, records, or other documents |
13 | | and materials, as the court deems appropriate, until the |
14 | | person has fully complied with the subpoena or subpoena duces |
15 | | tecum and the Secretary has completed an investigation. |
16 | | (c) If it appears to the Secretary that the compliance |
17 | | with a subpoena or subpoena duces tecum issued or caused to be |
18 | | issued by the Secretary under this Section is essential to an |
19 | | investigation, the Secretary, in addition to the other |
20 | | remedies provided for in this Act, may, through the Attorney |
21 | | General, apply for relief to the circuit court of the county in |
22 | | which the subpoenaed person resides or has its principal place |
23 | | of business. The court shall thereupon direct the issuance of |
24 | | an order against the subpoenaed person requiring sufficient |
25 | | bond conditioned on compliance with the subpoena or subpoena |
26 | | duces tecum. The court shall cause to be endorsed on the order |
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1 | | a suitable amount of bond or payment pursuant to which the |
2 | | person named be freed, having a due regard to the nature of the |
3 | | case. |
4 | | (d) In addition, the Secretary may, through the Attorney |
5 | | General, seek a writ of attachment or an equivalent order from |
6 | | the circuit court having jurisdiction over the person who has |
7 | | refused to obey a subpoena, who has refused to give testimony, |
8 | | or who has refused to produce the matters described in the |
9 | | subpoena duces tecum. |
10 | | Section 45. Sales-based financing disclosure requirements. |
11 | | A provider subject to this Act shall provide the following |
12 | | disclosures to a recipient, in a manner prescribed by the |
13 | | Secretary, if any, at the time of extending a specific offer of |
14 | | sales-based financing: |
15 | | (1) The total amount of the commercial financing, and, |
16 | | if different from the financing amount, the disbursement |
17 | | amount after any amount deducted or withheld at |
18 | | disbursement. |
19 | | (2) The finance charge. |
20 | | (3) The estimated annual percentage rate, using the |
21 | | words annual percentage rate or the abbreviation |
22 | | "Estimated APR", expressed as a yearly rate, inclusive of |
23 | | any fees and finance charges, based on the estimated term |
24 | | of repayment and the projected periodic payment amounts. |
25 | | The estimated term of repayment and the projected periodic |
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1 | | payment amounts shall be calculated based on the |
2 | | projection of the recipient's sales, which may be referred |
3 | | to as the projected sales volume. The projected sales |
4 | | volume may be calculated using the historical method or |
5 | | the underwriting method. The provider shall provide notice |
6 | | to the Secretary on which method the provider intends to |
7 | | use across all instances of sales-based financing offered |
8 | | in calculating the estimated annual percentage rate under |
9 | | this Section, according to the following: |
10 | | (A) A provider using the historical method shall |
11 | | use an average historical volume of sales or revenue |
12 | | by which the financing's payment amounts are based and |
13 | | the estimated annual percentage rate is calculated. |
14 | | The provider shall fix the historical time period used |
15 | | to calculate the average historical volume and use the |
16 | | period for all disclosure purposes for all sales-based |
17 | | financing products offered. The fixed historical time |
18 | | period shall either be the preceding time period from |
19 | | the specific offer or, alternatively, the provider may |
20 | | use average sales for the same number of months with |
21 | | the highest sales volume within the previous 12 |
22 | | months. The fixed historical time period shall be no |
23 | | less than one month and shall not exceed 12 months. |
24 | | (B) A provider using the underwriting method shall |
25 | | determine the estimated annual percentage rate, the |
26 | | estimated term, and the projected payments, using a |
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1 | | projected sales volume that the provider elects for |
2 | | each disclosure, if they participate in a review |
3 | | process prescribed by the Secretary. A provider shall, |
4 | | on an annual basis, report data to the Secretary of |
5 | | estimated annual percentage rates disclosed to the |
6 | | recipient and actual retrospective annual percentage |
7 | | rates of completed transactions. The report shall |
8 | | contain the information as the Department may adopt by |
9 | | rule as necessary or appropriate for the purpose of |
10 | | making a determination of whether the deviation |
11 | | between the estimated annual percentage rate and |
12 | | actual retrospective annual percentage rates of |
13 | | completed transactions was reasonable. The Secretary |
14 | | shall establish the method of reporting and may, upon |
15 | | a finding that the use of projected sales volume by the |
16 | | provider has resulted in an unacceptable deviation |
17 | | between estimated and actual annual percentage rate, |
18 | | require the provider to use the historical method. The |
19 | | Secretary may consider unusual and extraordinary |
20 | | circumstances impacting the provider's deviation |
21 | | between estimated and actual annual percentage rate in |
22 | | the determination of the finding. |
23 | | (4) The total repayment amount, which is the |
24 | | disbursement amount plus the finance charge. |
25 | | (5) The estimated term, which is the period of time |
26 | | required for the periodic payments, based on the projected |
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1 | | sales volume, to equal the total amount required to be |
2 | | repaid. |
3 | | (6) The payment amounts, based on the projected sales |
4 | | volume: |
5 | | (A) for payment amounts that are fixed, the |
6 | | payment amounts and frequency, such as, daily, weekly, |
7 | | monthly, and, if the payment frequency is other than |
8 | | monthly, the amount of the average projected payments |
9 | | per month; or |
10 | | (B) for payment amounts that are variable, a |
11 | | payment schedule or a description of the method used |
12 | | to calculate the amounts and frequency of payments and |
13 | | the amount of the average projected payments per |
14 | | month. |
15 | | (7) A description of all other potential fees and |
16 | | charges not included in the finance charge, including, but |
17 | | not limited to, draw fees, late payment fees, and returned |
18 | | payment fees. |
19 | | (8) If the recipient elects to pay off or refinance |
20 | | the commercial financing before full repayment, the |
21 | | provider shall disclose: |
22 | | (A) whether the recipient would be required to pay |
23 | | any finance charges other than interest accrued since |
24 | | their last payment; if so, disclosure of the |
25 | | percentage of any unpaid portion of the finance charge |
26 | | and maximum dollar amount the recipient could be |
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1 | | required to pay; and |
2 | | (B) whether the recipient would be required to pay |
3 | | any additional fees not already included in the |
4 | | finance charge. |
5 | | (9) A description of collateral requirements or |
6 | | security interests, if any. |
7 | | Section 50. Commercial closed-end financing disclosure |
8 | | requirements. |
9 | | (a) A provider subject to this Act shall provide the |
10 | | following disclosures to a recipient, in a manner prescribed |
11 | | by the Secretary, if any, at the time of extending a specific |
12 | | offer for closed-end financing: |
13 | | (1) The total amount of the commercial financing, and, |
14 | | if different from the financing amount, the disbursement |
15 | | amount after any amount deducted or withheld at |
16 | | disbursement. |
17 | | (2) The finance charge. |
18 | | (3) The annual percentage rate, using only the words |
19 | | annual percentage rate or the abbreviation "APR", |
20 | | expressed as a yearly rate, inclusive of any fees and |
21 | | finance charges that cannot be avoided by a recipient. |
22 | | (4) The total repayment amount, which is the |
23 | | disbursement amount plus the finance charge. |
24 | | (5) The term of the financing. |
25 | | (6) The payment amounts: |
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1 | | (A) for payment amounts that are fixed, the |
2 | | payment amounts and frequency, such as daily, weekly, |
3 | | monthly, and, if the term is longer than one month, the |
4 | | average monthly payment amount; or |
5 | | (B) for payment amounts that are variable, a full |
6 | | payment schedule or a description of the method used |
7 | | to calculate the amounts and frequency of payments, |
8 | | and, if the term is longer than one month, the |
9 | | estimated average monthly payment amount. |
10 | | (7) A description of all other potential fees and |
11 | | charges that can be avoided by the recipient, including, |
12 | | but not limited to, late payment fees and returned payment |
13 | | fees. |
14 | | (8) If the recipient elects to pay off or refinance |
15 | | the commercial financing before full repayment, the |
16 | | provider shall disclose: |
17 | | (A) whether the recipient would be required to pay |
18 | | any finance charges other than interest accrued since |
19 | | their last payment; if so, disclosure of the |
20 | | percentage of any unpaid portion of the finance charge |
21 | | and maximum dollar amount the recipient could be |
22 | | required to pay; and |
23 | | (B) whether the recipient would be required to pay |
24 | | any additional fees not already included in the |
25 | | finance charge. |
26 | | (9) A description of collateral requirements or |
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1 | | security interests, if any. |
2 | | (b) If an advance requires repayment in periodic |
3 | | installments over time and does not qualify as sales-based |
4 | | financing, then the advance qualifies as close-end financing |
5 | | and shall satisfy the disclosure requirements of this Section. |
6 | | Section 55. Open-end commercial financing disclosure |
7 | | requirements. A provider subject to this Act shall provide the |
8 | | following disclosures to a recipient, in a manner prescribed |
9 | | by the Secretary, if any, at the time of extending a specific |
10 | | offer for open-end financing: |
11 | | (1) The maximum amount of credit available to the |
12 | | recipient, such as the credit line amount, and the amount |
13 | | scheduled to be drawn by the recipient at the time the |
14 | | offer is extended, if any, less any amount deducted or |
15 | | withheld at disbursement. |
16 | | (2) The finance charge. |
17 | | (3) The annual percentage rate, using only the words |
18 | | annual percentage rate or the abbreviation "APR", |
19 | | expressed as a nominal yearly rate, inclusive of any fees |
20 | | and finance charges that cannot be avoided by a recipient, |
21 | | and based on the maximum amount of credit available to the |
22 | | recipient and the term resulting from making the minimum |
23 | | required payments term as disclosed. |
24 | | (4) The total repayment amount, which is the draw |
25 | | amount, less any fees deducted or withheld at |
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1 | | disbursement, plus the finance charge. The total repayment |
2 | | amount shall assume a draw amount equal to the maximum |
3 | | amount of credit available to the recipient if drawn and |
4 | | held for the duration of the term or draw period. |
5 | | (5) The term of the plan, if applicable, or the period |
6 | | over which a draw is amortized. |
7 | | (6) The payment frequency and amounts, based on the |
8 | | assumptions used in the calculation of the annual |
9 | | percentage rate, including a description of payment amount |
10 | | requirements such as a minimum payment amount, and if the |
11 | | payment frequency is other than monthly, the amount of the |
12 | | average projected payments per month. For payment amounts |
13 | | that are variable, the provider should include a payment |
14 | | schedule or a description of the method used to calculate |
15 | | the amounts and frequency of payments and the estimated |
16 | | average monthly payment amount. |
17 | | (7) A description of all other potential fees and |
18 | | charges that can be avoided by the recipient, including, |
19 | | but not limited to, draw fees, late payment fees, and |
20 | | returned payment fees. |
21 | | (8) Were the recipient to elect to pay off or |
22 | | refinance the commercial financing before full repayment, |
23 | | the provider shall disclose: |
24 | | (A) whether the recipient would be required to pay |
25 | | any finance charges other than interest accrued since |
26 | | their last payment; if so, disclosure of the |
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1 | | percentage of any unpaid portion of the finance charge |
2 | | and maximum dollar amount the recipient could be |
3 | | required to pay; and |
4 | | (B) whether the recipient would be required to pay |
5 | | any additional fees not already included in the |
6 | | finance charge. |
7 | | (9) A description of collateral requirements or |
8 | | security interests, if any. |
9 | | Section 60. Factoring transaction disclosure requirements. |
10 | | A provider subject to this Act shall provide the following |
11 | | disclosures to a recipient, in a manner prescribed by the |
12 | | Secretary, if any, at the time of extending a specific offer |
13 | | for a factoring transaction: |
14 | | (1) The amount of the receivables purchase price paid |
15 | | to the recipient, and, if different from the purchase |
16 | | price, the disbursement amount after any amount deducted |
17 | | or withheld at disbursement. |
18 | | (2) The finance charge. |
19 | | (3) The estimated annual percentage rate, using that |
20 | | term. To calculate the estimated annual percentage rate, |
21 | | the purchase amount is considered the financing amount, |
22 | | the purchase amount minus the finance charge is considered |
23 | | the payment amount, and the term is established by the |
24 | | payment due date of the receivables. As an alternate |
25 | | method of establishing the term, the provider may estimate |
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1 | | the term for a factoring transaction as the average |
2 | | payment period based on its historical data over a period |
3 | | not to exceed the previous 12 months, concerning payment |
4 | | invoices paid by the party or parties owing the accounts |
5 | | receivable in question. |
6 | | (4) The total payment amount, which is the purchase |
7 | | amount plus the finance charge. |
8 | | (5) A description of all other potential fees and |
9 | | charges that can be avoided by the recipient. |
10 | | (6) A description of the receivables purchased and any |
11 | | additional collateral requirements or security interests. |
12 | | Section 65. Other forms of financing disclosure |
13 | | requirements. The Secretary may require disclosure by a |
14 | | provider extending a specific offer of commercial financing |
15 | | which is not an open-end financing, closed-end financing, |
16 | | sales-based financing, or factoring transaction but otherwise |
17 | | meets the definition of commercial financing. Subject to rules |
18 | | adopted by the Secretary, a provider subject to this Act shall |
19 | | provide the following disclosures to a recipient, in a manner |
20 | | prescribed by the Secretary, if any, at the time of extending a |
21 | | specific offer of other forms of financing: |
22 | | (1) The total amount of the commercial financing, and, |
23 | | if different from the financing amount, the disbursement |
24 | | amount after any fees deducted or withheld at |
25 | | disbursement. |
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1 | | (2) The finance charge. |
2 | | (3) The annual percentage rate, using only the words |
3 | | annual percentage rate or the abbreviation "APR", |
4 | | expressed as a yearly rate, inclusive of any fees and |
5 | | finance charges. |
6 | | (4) The total repayment amount which is the |
7 | | disbursement amount plus the finance charge. |
8 | | (5) The term of the financing. |
9 | | (6) The payment amounts: |
10 | | (A) for payment amounts that are fixed, the |
11 | | payment amounts and frequency, such as daily, weekly, |
12 | | monthly, and the average monthly payment amount; or |
13 | | (B) for payment amounts that are variable, a |
14 | | payment schedule or a description of the method used |
15 | | to calculate the amounts and frequency of payments, |
16 | | and the estimated average monthly payment amount. |
17 | | (7) A description of all other potential fees and |
18 | | charges that can be avoided by the recipient, including, |
19 | | but not limited to, late payment fees and returned payment |
20 | | fees. |
21 | | (8) If the recipient elects to pay off or refinance |
22 | | the commercial financing before full repayment, the |
23 | | provider shall disclose: |
24 | | (A) whether the recipient would be required to pay |
25 | | any finance charges other than interest accrued since |
26 | | their last payment; if so, disclosure of the |
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1 | | percentage of any unpaid portion of the finance charge |
2 | | and maximum dollar amount the recipient could be |
3 | | required to pay; and |
4 | | (B) whether the recipient would be required to pay |
5 | | any additional fees not already included in the |
6 | | finance charge. |
7 | | (9) A description of collateral requirements or |
8 | | security interests, if any. |
9 | | Section 70. Disclosure requirements for renewal financing. |
10 | | If, as a condition of obtaining the commercial financing, the |
11 | | provider requires the recipient to pay off the balance of an |
12 | | existing commercial financing from the same provider, the |
13 | | provider shall disclose: |
14 | | (1) The amount of the new commercial financing that is |
15 | | used to pay off the portion of the existing commercial |
16 | | financing that consists of prepayment charges required to |
17 | | be paid and any unpaid interest expense that was not |
18 | | forgiven at the time of renewal. For financing for which |
19 | | the total repayment amount is calculated as a fixed |
20 | | amount, the prepayment charge is equal to the original |
21 | | finance charge multiplied by the amount of the renewal |
22 | | used to pay off existing financing as a percentage of the |
23 | | total repayment amount, minus any portion of the total |
24 | | repayment amount forgiven by the provider at the time of |
25 | | prepayment. If the amount is more than zero, the amount |
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1 | | shall be the answer to the following question: "Does the |
2 | | renewal financing include any amount that is used to pay |
3 | | unpaid finance charges or fees, also known as double |
4 | | dipping? Yes, {enter amount}. If the amount is zero, the |
5 | | answer would be no." |
6 | | (2) If the disbursement amount will be reduced to pay |
7 | | down any unpaid portion of the outstanding balance, the |
8 | | actual dollar amount by which the disbursement amount will |
9 | | be reduced. |
10 | | Section 75. Additional information. Nothing in this Act |
11 | | shall prevent a provider from providing or disclosing |
12 | | additional information on a commercial financing being offered |
13 | | to a recipient, provided however, that the additional |
14 | | information shall not be disclosed as part of the disclosure |
15 | | required by this Act. If other metrics of financing cost are |
16 | | disclosed or used in the application process of a commercial |
17 | | financing, these metrics shall not be presented as a "rate" if |
18 | | they are not the annual interest rate or the annual percentage |
19 | | rate. The term "interest", when used to describe a percentage |
20 | | rate, shall only be used to describe annualized percentage |
21 | | rates, such as the annual interest rate. When a provider |
22 | | states a rate of finance charge or a financing amount to a |
23 | | recipient during an application process for commercial |
24 | | financing, the provider shall also state the rate as an |
25 | | "annual percentage rate", using that term or the abbreviation |
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1 | | "APR". |
2 | | Section 80. Commercial financing disclosure forms approved |
3 | | for use in the other states. The Secretary may approve the use |
4 | | of commercial financing disclosure forms approved for use in |
5 | | other states with commercial financing disclosure requirements |
6 | | that are substantially similar to or exceed the requirements |
7 | | set forth in this Act, including the disclosure requirements |
8 | | in Sections 45, 50, 55, 60, 65, and 70 of this Act. |
9 | | Section 85. Violation of disclosure requirements. If the |
10 | | Secretary finds that a provider who is required to register |
11 | | with the Department according to this Act has violated any |
12 | | disclosure requirements outlined in Sections 45, 50, 55, 60, |
13 | | 65, 70, and 75, that shall be considered a violation of this |
14 | | Act separate from any other violation that may result from |
15 | | operating without a registration as outlined in Section 95. |
16 | | Section 90. Notification. |
17 | | (a) A registrant must advise the Secretary in writing of |
18 | | any changes to the information submitted on its most recent |
19 | | registration or renewal of registration within 30 days after |
20 | | the change. |
21 | | (b) A registrant must advise the Secretary in writing that |
22 | | the registrant has been disciplined, including denial of |
23 | | licensure, by a licensing authority of this State or another |
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1 | | state within 10 days after entry of the discipline. |
2 | | Section 95. Disciplinary actions. |
3 | | (a) The Secretary may enter an order imposing one or more |
4 | | of the following penalties: |
5 | | (1) revocation of registration; |
6 | | (2) suspension of a registration subject to |
7 | | reinstatement upon satisfying all reasonable conditions |
8 | | the Secretary may specify; |
9 | | (3) placement of the registrant or applicant on |
10 | | probation for a period of time and subject to all |
11 | | reasonable conditions as the Secretary may specify; |
12 | | (4) imposition of civil monetary penalties not to |
13 | | exceed $10,000 for each separate offense, but civil |
14 | | penalties may not to exceed $50,000 for all violations |
15 | | arising from the use of the same single transaction, |
16 | | including for financing offers that are not consummated; |
17 | | (5) restitution, refunds, or any other relief |
18 | | necessary to protect recipients; and |
19 | | (6) denial of a registration. |
20 | | (b) Grounds for penalties include: |
21 | | (1) if a registrant has violated or aided another to |
22 | | violate any provision of this Act, any rule adopted by the |
23 | | Secretary, or any other law, rule, or regulation of this |
24 | | State, any other state, or the United States; |
25 | | (2) if a person has violated or aided another to |
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1 | | violate any provision of this Act or any rule adopted by |
2 | | the Secretary pursuant to this Act; |
3 | | (3) if a fact or condition exists that, if it had |
4 | | existed at the time of the original application for |
5 | | registration, would have warranted the Secretary in |
6 | | refusing issue the original registration; |
7 | | (4) that a registrant that is not an individual has |
8 | | acted or failed to act in a way that would be cause for |
9 | | suspending or revoking a registration to an individual; |
10 | | (5) that a person engaged in unsafe, unsound, unfair, |
11 | | deceptive, or abusive business practices related to the |
12 | | activity covered by this Act; |
13 | | (6) that a registrant or an officer, director, |
14 | | manager, operator, or principal of the registrant, or an |
15 | | employee of the registrant engaged in the business of |
16 | | commercial financing has been adjudicated guilty of a |
17 | | crime against the law of this State, any other state, or of |
18 | | the United States involving moral turpitude, abusive, |
19 | | deceptive, fraudulent, or dishonest dealing; |
20 | | (7) that a final judgment has been entered against |
21 | | registrant or an officer, director, manager, operator, or |
22 | | principal of the registrant, or an employee of the |
23 | | registrant engaged in the business of commercial financing |
24 | | in a civil action upon grounds of abusive conduct, |
25 | | conversion, fraud, misrepresentation, or deceit; |
26 | | (8) that an applicant made a material misstatement in |
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1 | | the applicant's application for registration or any other |
2 | | communication to the Secretary; |
3 | | (9) that a person has demonstrated, by course of |
4 | | conduct, negligence or incompetence in performing any act |
5 | | for which it is required to hold a registration under this |
6 | | Act; |
7 | | (10) that a person has failed to advise the Secretary |
8 | | in writing of any changes to the information submitted on |
9 | | the person's most recent registration or renewal of |
10 | | registration within 30 days after the change; |
11 | | (11) that a registrant had a license, registration, or |
12 | | the equivalent, to practice any profession, occupation, |
13 | | other industry or activity requiring licensure revoked, |
14 | | suspended, disciplined, or otherwise acted against, |
15 | | including the denial of licensure by a licensing authority |
16 | | of this State or another state, territory, or country for |
17 | | fraud, dishonest dealing, misrepresentations, |
18 | | incompetence, conversion, any act of moral turpitude or |
19 | | any other grounds that would constitute grounds for |
20 | | discipline under this Act; |
21 | | (12) that a person registered under this Act failed to |
22 | | timely notify the Secretary that the person has been |
23 | | disciplined, including denial of licensure, by a licensing |
24 | | authority of this State or another state as required under |
25 | | subsection (b) of Section 90; |
26 | | (13) that a person engaged in activities regulated by |
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1 | | this Act without a current, active registration unless |
2 | | specifically exempted by this Act; |
3 | | (14) that a person failed to timely pay any fee, |
4 | | charge, or civil penalty assessed under this Act; and |
5 | | (15) that a person refused, obstructed, evaded, or |
6 | | unreasonably delayed an investigation or information |
7 | | request authorized under this Act, or refused, obstructed, |
8 | | evaded, or unreasonably delayed compliance with the |
9 | | Secretary's subpoena or subpoena duces tecum. |
10 | | (c) No registration shall be suspended or revoked, except |
11 | | as provided in this Section, nor shall any person be assessed a |
12 | | civil penalty without notice of his or her right to a hearing. |
13 | | (d) The Secretary may suspend any registration for a |
14 | | period not exceeding 180 days pending investigation for good |
15 | | cause shown that an emergency exists. |
16 | | (e) No revocation, suspension, or surrender of any |
17 | | registration shall impair or affect the obligation of any |
18 | | preexisting lawful contract between the registrant and any |
19 | | person. The Secretary's approval of a registrant's application |
20 | | to surrender its registration shall not affect the |
21 | | registrant's civil or criminal liability for acts committed |
22 | | prior to surrender. Surrender of a registration does not |
23 | | entitle the registrant to a return of any part of the |
24 | | registration fee. |
25 | | (f) Every registration issued under this Act shall remain |
26 | | in force and effect until the registration expires, is |
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1 | | surrendered, is revoked, or is suspended in accordance with |
2 | | the provisions of this Act. The Secretary shall have authority |
3 | | to reinstate a suspended registration or to issue a new |
4 | | registration to a registrant whose registration has been |
5 | | revoked or surrendered if no fact or condition then exists |
6 | | which would have warranted the Secretary in refusing |
7 | | originally to issue that registration under this Act. |
8 | | (g) Whenever the Secretary imposes discipline authorized |
9 | | by this Section, the Secretary shall execute a written order |
10 | | to that effect. The Secretary shall serve a copy of the order |
11 | | upon the person. The Secretary shall serve the person with |
12 | | notice of the order, including a statement of the reasons for |
13 | | the order personally or by certified mail. Service by |
14 | | certified mail shall be deemed completed when the notice is |
15 | | deposited in the U.S. Mail. |
16 | | (h) An order assessing a civil penalty, an order revoking |
17 | | or suspending a registration, or an order denying renewal of a |
18 | | registration shall take effect upon service of the order |
19 | | unless the registrant serves the Department with a written |
20 | | request for a hearing in the manner required by the order |
21 | | within 10 days after the date of service of the order. If a |
22 | | person requests a hearing, the order shall be stayed from its |
23 | | date of service until the Department enters a final |
24 | | administrative order. Hearings shall be conducted as follows: |
25 | | (1) If the registrant requests a hearing, then the |
26 | | Secretary shall schedule a hearing within 90 days after |
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1 | | the request for a hearing unless otherwise agreed to by |
2 | | the parties. |
3 | | (2) The hearing shall be held at the time and place |
4 | | designated by the Secretary. The Secretary and any |
5 | | administrative law judge designated by the Secretary shall |
6 | | have the power to administer oaths and affirmations, |
7 | | subpoena witnesses and compel their attendance, take |
8 | | evidence, and require the production of books, papers, |
9 | | correspondence, and other records or information that they |
10 | | consider relevant or material to the inquiry. |
11 | | (i) The costs of administrative hearings conducted under |
12 | | this Section shall be paid by the registrant or other person |
13 | | subject to the hearing. |
14 | | (j) Registrants and other persons subject to this Act |
15 | | shall be subject to the disciplinary actions specified in this |
16 | | Act for any violations conducted by any officer, director, |
17 | | shareholder, joint venture, partner, owner, including, but not |
18 | | limited to, ultimate equitable owner. |
19 | | Section 100. Investigation of complaints. The Secretary |
20 | | may investigate any complaints and inquiries made concerning |
21 | | this Act and any registrants or persons the Secretary believes |
22 | | may be required to register under this Act. Each registrant or |
23 | | person the Secretary believes may be required to register |
24 | | under this Act shall open the registrant's or person's books, |
25 | | records, documents, and offices wherever situated to the |
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1 | | Secretary as needed to facilitate the investigations. |
2 | | Section 105. Additional investigation authority. In |
3 | | addition to any authority allowed under this Act, the |
4 | | Secretary may conduct investigations as follows: |
5 | | (1) For purposes of initial registration, registration |
6 | | renewal, registration suspension, registration |
7 | | conditioning, registration probation, registration |
8 | | revocation or termination, or general or specific inquiry |
9 | | or investigation to determine compliance with this Act, |
10 | | the Secretary may access, receive, and use any books, |
11 | | accounts, records, files, documents, information, or |
12 | | evidence, including, but not limited to, the following: |
13 | | (A) criminal, civil, registration, and |
14 | | administrative history information, including |
15 | | nonconviction data as specified in the Criminal Code |
16 | | of 2012; (B) personal history and experience |
17 | | information, including independent credit reports |
18 | | obtained from a consumer reporting agency described in |
19 | | Section 603(p) of the federal Fair Credit Reporting |
20 | | Act; and (C) any other documents, information, or |
21 | | evidence the Secretary deems relevant to the inquiry |
22 | | or investigation, regardless of the location, |
23 | | possession, control, or custody of the documents, |
24 | | information, or evidence. |
25 | | (2) For the purposes of investigating violations or |
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1 | | complaints arising under this Act, the Secretary may |
2 | | review or investigate any registrant or person subject to |
3 | | this Act as necessary in order to carry out the purposes of |
4 | | this Act. The Secretary may direct, subpoena, or order the |
5 | | attendance of, and examine under oath all persons and |
6 | | order any person to produce records, files, and any other |
7 | | documents the Secretary deems relevant to an inquiry. |
8 | | (3) Each person subject to this Act shall make |
9 | | available to the Secretary upon request the books and |
10 | | records relating to the operations of the person subject |
11 | | to this Act. The Secretary shall have access to those |
12 | | books and records and may interview the owners, officers, |
13 | | principals, employees, independent contractors, agents, |
14 | | vendors, and customers of any registrant or person subject |
15 | | to this Act. |
16 | | (4) In making any investigation authorized by this |
17 | | Act, the Secretary may control access to any documents and |
18 | | records of the registrant or person under investigation. |
19 | | The Secretary may take possession of the documents and |
20 | | records or otherwise take constructive control of the |
21 | | documents. During the period of control, no person shall |
22 | | remove or alter any of the documents or records, except |
23 | | pursuant to a court order or with the consent of the |
24 | | Secretary. Unless the Secretary has reasonable grounds to |
25 | | believe the documents or records of the registrant have |
26 | | been or are at risk of being altered or destroyed for |
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1 | | purposes of concealing a violation of this Act, the |
2 | | registrant or owner of the documents and records shall |
3 | | have access to the documents or records as necessary to |
4 | | conduct its ordinary business affairs. |
5 | | (5) In order to carry out the purposes of this |
6 | | Section, the Secretary may: |
7 | | (A) retain attorneys, accountants, or other |
8 | | professionals and specialists as auditors or |
9 | | investigators to conduct or assist in the conduct of |
10 | | investigations; |
11 | | (B) enter into agreements or relationships with |
12 | | other government officials or regulatory associations |
13 | | to protect consumers or financing recipients, improve |
14 | | efficiencies, and reduce regulatory burden by sharing |
15 | | resources, standardized or uniform methods or |
16 | | procedures, and documents, records, information, or |
17 | | evidence obtained under this Section; |
18 | | (C) use, hire, contract, or employ publicly or |
19 | | privately available analytical systems, methods, or |
20 | | software or investigate the registrant or person |
21 | | subject to this Act; |
22 | | (D) accept and rely on examination or |
23 | | investigation reports made by other government |
24 | | officials, within or outside this State; or |
25 | | (E) accept audit reports made by an independent |
26 | | certified public accountant for the person subject to |
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1 | | this Act and may incorporate the audit report in the |
2 | | report of the investigation or other writing of the |
3 | | Secretary. |
4 | | (6) The authority of this Section shall remain in |
5 | | effect, whether the person subject to this Act acts or |
6 | | claims to act under any licensing or registration law of |
7 | | this State or claims to act without the authority. |
8 | | (7) No registrant or person subject to investigation |
9 | | or under this Section may knowingly withhold, alter, |
10 | | abstract, remove, mutilate, destroy, hide, or conceal any |
11 | | books, records, computer records, or other information or |
12 | | take actions designed to delay or complicate review of |
13 | | records. |
14 | | Section 110. Confidentiality. To promote more effective |
15 | | regulation, protect consumers and financing recipients, and |
16 | | reduce regulatory burden through inter-regulatory sharing of |
17 | | confidential supervisory information: |
18 | | (1) The privacy or confidentiality of any information |
19 | | or material provided to a multistate licensing system, |
20 | | including all privileges arising under federal or state |
21 | | court rules and law, shall continue to apply to the |
22 | | information or material after the information or material |
23 | | has been disclosed to the multistate licensing system. |
24 | | Information and material may be shared with a multistate |
25 | | licensing system, federal and state regulatory officials |
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1 | | with relevant oversight authority, and law enforcement |
2 | | without the loss of privilege or the loss of |
3 | | confidentiality protections. |
4 | | (2) The Secretary is authorized to enter into |
5 | | agreements or sharing arrangements with other governmental |
6 | | agencies, the Conference of State Bank Supervisors, and |
7 | | other associations representing governmental agencies. |
8 | | (3) Information or material that is privileged or |
9 | | confidential under this Act as determined by the Secretary |
10 | | is not subject to the following: |
11 | | (A) disclosure under any State law governing the |
12 | | disclosure to the public of information held by an |
13 | | officer or an agency of the State; or |
14 | | (B) subpoena, discovery, or admission into |
15 | | evidence, in any private civil action or |
16 | | administrative process except as authorized by the |
17 | | Secretary. |
18 | | (4) Any other law relating to the disclosure of |
19 | | confidential supervisory information that is inconsistent |
20 | | with this Act shall be superseded by the requirements of |
21 | | this Section to the extent the other law provides less |
22 | | confidentiality or a weaker privilege for information that |
23 | | is privileged or confidential under this Act. |
24 | | (5) Confidential or privileged information received |
25 | | from a multistate licensing system, another licensing |
26 | | body, federal and state regulatory officials, or law |
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1 | | enforcement shall be protected to the same extent as the |
2 | | Secretary's confidential and privileged information is |
3 | | protected under this Act. The Secretary may also protect |
4 | | from disclosure confidential or privileged information |
5 | | that would be exempt from disclosure to the extent it is |
6 | | held directly by the multistate licensing system, another |
7 | | licensing body, federal and state regulatory officials, or |
8 | | law enforcement. |
9 | | Section 115. Appeal and review. |
10 | | (a) The Secretary may, in accordance with the Illinois |
11 | | Administrative Procedure Act, adopt rules to provide for |
12 | | review within the Department of their decisions affecting the |
13 | | rights of persons under this Act. The review shall provide |
14 | | for, at a minimum: |
15 | | (1) appointment of a hearing officer; |
16 | | (2) appropriate procedural rules, specific deadlines |
17 | | for filings, and standards of evidence and of proof; and |
18 | | (3) provisions for apportioning costs among parties to |
19 | | the appeal. |
20 | | (b) All final agency determinations of appeals to |
21 | | decisions of the Secretary may be reviewed in accordance with |
22 | | and under the provisions of the Administrative Review Law. |
23 | | Appeals from all final orders and judgments entered by a court |
24 | | in review of any final administrative decision of the |
25 | | Secretary or of any final agency review of a decision of the |
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1 | | Secretary may be taken as in other civil cases. |
2 | | Section 120. Registration fees. |
3 | | (a) The fee for initial registration is $2,500. The fee is |
4 | | nonrefundable. |
5 | | (b) The fee for annual application renewal is $2,500. The |
6 | | fee is nonrefundable. |
7 | | (c) The Department shall impose a contingent fee |
8 | | sufficient to cover its operating expenses in administering |
9 | | this Act not otherwise covered by all other revenue collected |
10 | | under this Act. Each registrant shall pay to the Division its |
11 | | pro rata share, based on number or volume of transactions or |
12 | | revenue, of the cost for administration of this Act that |
13 | | exceeds other fees listed in this Section, as estimated by the |
14 | | Division, for the current year and any deficit actually |
15 | | incurred in the administration of this Act in prior years. |
16 | | Section 125. Cease and desist order. |
17 | | (a) The Secretary may issue a cease and desist order to any |
18 | | registrant or person doing business without the required |
19 | | registration when, in the opinion of the Secretary, the |
20 | | registrant or other person has violated, is violating, or is |
21 | | about to violate any provision of this Act or any rule adopted |
22 | | by the Department under this Act or any requirement imposed in |
23 | | writing by the Department as a condition of granting any |
24 | | authorization permitted by this Act. The cease and desist |
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1 | | order authorized by this Section may be issued prior to a |
2 | | hearing. |
3 | | (b) The Secretary shall serve notice of the cease and |
4 | | desist order, either personally or by certified mail. Service |
5 | | by certified mail shall be deemed completed when the notice is |
6 | | deposited in the U.S. Mail. The Secretary's notice shall |
7 | | include a statement of the reasons for the action. |
8 | | (c) Within 10 days after service of the cease and desist |
9 | | order, the person subject to the cease and desist order may |
10 | | request a hearing in writing. The Secretary shall schedule a |
11 | | preliminary hearing within 60 days after the request for a |
12 | | hearing unless the parties agree to a later date. |
13 | | (d) If it is determined that the Secretary had the |
14 | | authority to issue the cease and desist order, the Secretary |
15 | | may issue the orders as may be reasonably necessary to |
16 | | correct, eliminate, deter, or remedy the conduct described in |
17 | | the order and resulting harms. |
18 | | (e) The powers vested in the Secretary by this Section are |
19 | | additional to all other powers and remedies vested in the |
20 | | Secretary by any law. Nothing in this Section shall be |
21 | | construed as requiring that the Secretary shall employ the |
22 | | power conferred in this Section instead of or as a condition |
23 | | precedent to the exercise of any other power or remedy vested |
24 | | in the Secretary. |
25 | | Section 130. Injunctions. The Secretary may maintain an |
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1 | | action in the name of the people of this State and may apply |
2 | | for an injunction in the circuit court to enjoin a person from |
3 | | violating this Act or its implementing rules through the |
4 | | Attorney General. |
5 | | Section 135. Exemptions. This Act does not apply to, and |
6 | | does not place any additional requirements or obligations |
7 | | upon, any of the following: |
8 | | (1) any person or entity that is not a provider; |
9 | | (2) a commercial financing transaction secured by real |
10 | | property; |
11 | | (3) a lease as defined in Section 2-A-103 of the |
12 | | Uniform Commercial Code, not including finance leases as |
13 | | defined in paragraph (g) of subsection (1) of Section |
14 | | 2A-103 of the Uniform Commercial Code; or |
15 | | (4) a company primarily in the business of |
16 | | manufacturing equipment, or any subsidiary or affiliate of |
17 | | such a company, when offering a commercial financing |
18 | | transaction for which the majority of the proceeds are |
19 | | used to finance nonfinancial products manufactured by the |
20 | | company, or any subsidiary or affiliate of such a company, |
21 | | or the maintenance of or other services on such products; |
22 | | (5) any person or provider who makes no more than 5 |
23 | | commercial financing transactions in this State in a |
24 | | 12-month period; |
25 | | (6) a single, discrete commercial financing |
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1 | | transaction in an amount over $2,500,000; or |
2 | | (7) a commercial financing transaction in which the |
3 | | recipient is a vehicle dealer subject to Section 5-101 or |
4 | | 5-102 of the Illinois Vehicle Code, an affiliate of a |
5 | | dealer, a rental vehicle company as defined in Section 10 |
6 | | of the Renter's Financial Responsibility and Protection |
7 | | Act, or an affiliate of a company under a commercial |
8 | | financing agreement or commercial open-end credit plan of |
9 | | at least $50,000, including any commercial loan made under |
10 | | a commercial financing transaction. |
11 | | Section 140. Complaint disclosure. All commercial |
12 | | financing shall include a clear and conspicuous notice on how |
13 | | to file a complaint with the Department. |
14 | | Section 145. Rules. The Secretary may adopt rules to enact |
15 | | and enforce this Act, including, but not limited to: |
16 | | (1) rules defining the terms used in this Act and as |
17 | | may be necessary and appropriate to interpret and |
18 | | implement the provisions of this Act; |
19 | | (2) rules for the enforcement and administration of |
20 | | this Act; |
21 | | (3) rules for the protection of consumers and |
22 | | recipients in this State; |
23 | | (4) rules defining improper or fraudulent business |
24 | | practices in connection with commercial financing; and |
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1 | | (5) rules to implement Section 165. |
2 | | Section 150. Violations. |
3 | | (a) Nothing in this Act shall be construed to restrict the |
4 | | exercise of powers or the performance of the duties that the |
5 | | Attorney General is authorized to exercise or perform by law. |
6 | | (b) Any violation of this Act constitutes an unlawful |
7 | | practice in violation of the Consumer Fraud and Deceptive |
8 | | Business Practices Act. The Attorney General may enforce a |
9 | | violation of this Act as an unlawful practice under the |
10 | | Consumer Fraud and Deceptive Business Practices Act. |
11 | | Section 155. Beginning of registration. No person shall be |
12 | | required to register under this Act before the date |
13 | | established by the Department by rule. The date shall not be |
14 | | before January 1, 2025. |
15 | | Section 160. Beginning of disclosure requirements. No |
16 | | person shall be required to comply with the disclosure |
17 | | requirements set forth in Sections 45, 50, 55, 60, 65, 70, and |
18 | | 165 before the date established by the Department by rule. The |
19 | | date shall not be before January 1, 2025. |
20 | | Section 165. Commercial financing database. |
21 | | (a) A commercial financing database program is established |
22 | | within the Department. The program shall be administered in |
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1 | | accordance with this Section. None of the duties, obligations, |
2 | | contingencies, or consequences of or from the program shall be |
3 | | imposed until 6 months after the Department certifies a |
4 | | commercial financing database under subsection (b). The |
5 | | program shall apply to all sales-based financings and |
6 | | commercial closed-end financings for which interest charges |
7 | | that accrue on the outstanding balance represent a minority of |
8 | | the finance charge that are governed by this Act and that are |
9 | | made or taken on or after the inception of the program. |
10 | | (b) The Department shall certify that a commercial |
11 | | financing database is a commercially reasonable method of |
12 | | reporting. Upon certifying that a commercial financing |
13 | | database is a commercially reasonable method of reporting, the |
14 | | Department shall: |
15 | | (1) provide reasonable notice to all registrants |
16 | | identifying the commercially reasonable method of |
17 | | reporting that is available; and |
18 | | (2) no earlier than 6 months after certification, |
19 | | require each registrant offering sales-based financing or |
20 | | commercial closed-end financings for which interest |
21 | | charges that accrue on the outstanding balance represent a |
22 | | minority of the finance charge to use a commercially |
23 | | reasonable method of reporting as a means of complying |
24 | | with subsection (d) of this Section. |
25 | | (c) The database created under this program shall be |
26 | | maintained and administered by the Department. The database |
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1 | | shall be designed to allow providers to submit information to |
2 | | the database online. The database shall not be designed to |
3 | | allow providers to retrieve information from the database, |
4 | | except as otherwise provided in this Act. |
5 | | (d) Within 30 days after providing funds to a recipient, |
6 | | the provider shall submit to the commercial financing database |
7 | | the information delineated in subsections (e) and (f). If at |
8 | | the time funds are provided to a recipient, certain |
9 | | information delineated in this subsection is not known, then |
10 | | the provider shall submit the information to the commercial |
11 | | financing database within 30 days after the information |
12 | | becoming ascertainable. |
13 | | (e) For sales-based financings, the provider shall submit |
14 | | the following information to the commercial financing |
15 | | database: |
16 | | (1) the FEIN for the recipient; |
17 | | (2) the zip code of the recipient; |
18 | | (3) the date on which the disclosure required under |
19 | | Section 45 was provided; |
20 | | (4) the origination date of the sales-based financing; |
21 | | (5) the total amount of commercial financing; |
22 | | (6) the disbursed amount after any amount deducted or |
23 | | withheld at disbursement, if different than the financing |
24 | | amount; |
25 | | (7) the finance charge; |
26 | | (8) the estimated annual percentage rate as disclosed |
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1 | | to the recipient under paragraph (3) of Section 45; |
2 | | (9) the total repayment amount; |
3 | | (10) the estimated term, as disclosed to the recipient |
4 | | under paragraph (5) of Section 45; |
5 | | (11) the percentage of the recipient's sales upon |
6 | | which the payment is calculated; |
7 | | (12) the frequency of payment, and the total amount of |
8 | | average projected payments per month, as disclosed to the |
9 | | recipient under paragraph (6) of Section 45; |
10 | | (13) whether the projected sales volume used to |
11 | | determine the estimated annual percentage rate, estimated |
12 | | term, and projected payments provided in the disclosure |
13 | | under Section 45 were determined according to the |
14 | | historical method described in subparagraph (A) of |
15 | | paragraph (3) of Section 45 or according to the |
16 | | underwriting method described in subparagraph (B) of |
17 | | paragraph (3) of Section 45; |
18 | | (14) the amount of any finance charge the recipient |
19 | | would be required to pay if the recipient elects to pay off |
20 | | or refinance the sales-based financing before full |
21 | | repayment, as disclosed to the recipient; |
22 | | (15) description of collateral, if any, securing the |
23 | | sales-based financing, including any guarantee; |
24 | | (16) the position of any lien taken; |
25 | | (17) upon full repayment, if the sales-based financing |
26 | | includes a true-up mechanism, the number of true-ups |
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1 | | provided; |
2 | | (18) upon full repayment, the actual term of the |
3 | | commercial financing; |
4 | | (19) upon full repayment, the actual annual percentage |
5 | | rate calculated retrospectively based on the actual |
6 | | payments collected; and |
7 | | (20) all other information requested by the |
8 | | Department. |
9 | | (f) For closed-end financing for which interest charges |
10 | | that accrue on the outstanding balance represent a minority of |
11 | | the finance charge submit, the following information to the |
12 | | commercial financing database: |
13 | | (1) the FEIN for the recipient; |
14 | | (2) the zip code of the recipient; |
15 | | (3) the date on which the disclosure required under |
16 | | Section 50 was provided; |
17 | | (4) the origination date; |
18 | | (5) the total amount of commercial financing; |
19 | | (6) the disbursed amount after any amount deducted or |
20 | | withheld at disbursement, if different than the financing |
21 | | amount; |
22 | | (7) the finance charge; |
23 | | (8) the annual percentage rate as disclosed to the |
24 | | recipient under paragraph (3) of Section 50; |
25 | | (9) the total repayment amount; |
26 | | (10) the term of the financing; |
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1 | | (11) the frequency of payment; |
2 | | (12) the amount of the payment, and the total amount |
3 | | of average projected payments per month, as disclosed to |
4 | | the recipient under paragraph (6) of Section 50; |
5 | | (13) the amount of any finance charge the recipient |
6 | | would be required to pay if the recipient elects to pay off |
7 | | or refinance the commercial financing before full |
8 | | repayment, other than interest accrued since the last |
9 | | payment, as disclosed to the recipient; |
10 | | (14) whether the recipient would be required to pay |
11 | | any additional fees not already included in the finance |
12 | | charge if the recipient elects to pay off or refinance the |
13 | | commercial financing before full repayment, as disclosed |
14 | | to the recipient; |
15 | | (15) description of collateral, if any, securing the |
16 | | commercial financing, including any guarantee; |
17 | | (16) the position of any lien taken; and |
18 | | (17) all other information requested by the |
19 | | Department. |
20 | | (g) All personally identifiable information and |
21 | | information identifying the identity of a recipient obtained |
22 | | by way of the commercial financing database is strictly |
23 | | confidential and shall be exempt from disclosure under the |
24 | | Freedom of Information Act and any other law or regulation |
25 | | pertaining to the disclosure of information or documents. The |
26 | | Department may, by rule, identify any additional categories of |
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1 | | information the disclosure of which would be contrary to the |
2 | | public interest. Any request for production of information |
3 | | from the commercial financing database, whether by subpoena, |
4 | | notice, or any other source, shall be referred to the |
5 | | Department. Any recipient may authorize in writing the release |
6 | | of database information. The Department may use the |
7 | | information in the database without the consent of the |
8 | | recipient or the registrant: |
9 | | (1) for the purposes of administering and enforcing |
10 | | the program; |
11 | | (2) to prepare industry-level reports; |
12 | | (3) to provide information to the appropriate law |
13 | | enforcement agency or the applicable administrative or |
14 | | regulatory agency with a legitimate interest in the |
15 | | information as determined by the Secretary; |
16 | | (4) as required to comply with applicable law; or |
17 | | (5) in any other manner that the Secretary deems is |
18 | | not contrary to the public interest. |
19 | | (h) A registrant who submits information to a certified |
20 | | database provider in accordance with this Section shall not be |
21 | | liable to any person for any subsequent release or disclosure |
22 | | of that information by the certified database provider, the |
23 | | Department, or any other person acquiring possession of the |
24 | | information, regardless of whether the subsequent release or |
25 | | disclosure was lawful, authorized, or intentional. |
26 | | (i) In certifying a commercially reasonable method of |
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1 | | reporting, the Department shall ensure that the commercial |
2 | | financing database: |
3 | | (1) provides real-time access through an Internet |
4 | | connection; |
5 | | (2) is accessible to the Department and to registrants |
6 | | in order to ensure compliance with this Act and in order to |
7 | | provide any other information that the Department deems |
8 | | necessary; |
9 | | (3) requires registrants to input whatever information |
10 | | is required by the Department; |
11 | | (4) maintains a real-time copy of the required |
12 | | reporting information that is available to the Department |
13 | | at all times and is the property of the Department; and |
14 | | (5) contains safeguards to ensure that all information |
15 | | contained in the database regarding consumers and |
16 | | financing recipients is kept strictly confidential. |
17 | | (j) The certified commercial financing database may charge |
18 | | a fee to a registrant not to exceed $1 for each financing |
19 | | entered into the database. The certified commercial financing |
20 | | database shall not charge any additional fees or charges. |
21 | | (k) The certified commercial financing database provider |
22 | | shall produce an annual report for the Department using the |
23 | | data submitted by registrants to the database. The Department |
24 | | may publish this report to the public. |
25 | | Section 170. Severability. The provisions of this Act are |
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1 | | severable under Section 1.31 of the Statute on Statutes. |
2 | | Section 900. The Freedom of Information Act is amended by |
3 | | changing Section 7.5 as follows: |
4 | | (5 ILCS 140/7.5) |
5 | | (Text of Section before amendment by P.A. 103-472 ) |
6 | | Sec. 7.5. Statutory exemptions. To the extent provided for |
7 | | by the statutes referenced below, the following shall be |
8 | | exempt from inspection and copying: |
9 | | (a) All information determined to be confidential |
10 | | under Section 4002 of the Technology Advancement and |
11 | | Development Act. |
12 | | (b) Library circulation and order records identifying |
13 | | library users with specific materials under the Library |
14 | | Records Confidentiality Act. |
15 | | (c) Applications, related documents, and medical |
16 | | records received by the Experimental Organ Transplantation |
17 | | Procedures Board and any and all documents or other |
18 | | records prepared by the Experimental Organ Transplantation |
19 | | Procedures Board or its staff relating to applications it |
20 | | has received. |
21 | | (d) Information and records held by the Department of |
22 | | Public Health and its authorized representatives relating |
23 | | to known or suspected cases of sexually transmissible |
24 | | disease or any information the disclosure of which is |
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| | 10300SB2234sam003 | - 58 - | LRB103 28770 RTM 71808 a |
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1 | | restricted under the Illinois Sexually Transmissible |
2 | | Disease Control Act. |
3 | | (e) Information the disclosure of which is exempted |
4 | | under Section 30 of the Radon Industry Licensing Act. |
5 | | (f) Firm performance evaluations under Section 55 of |
6 | | the Architectural, Engineering, and Land Surveying |
7 | | Qualifications Based Selection Act. |
8 | | (g) Information the disclosure of which is restricted |
9 | | and exempted under Section 50 of the Illinois Prepaid |
10 | | Tuition Act. |
11 | | (h) Information the disclosure of which is exempted |
12 | | under the State Officials and Employees Ethics Act, and |
13 | | records of any lawfully created State or local inspector |
14 | | general's office that would be exempt if created or |
15 | | obtained by an Executive Inspector General's office under |
16 | | that Act. |
17 | | (i) Information contained in a local emergency energy |
18 | | plan submitted to a municipality in accordance with a |
19 | | local emergency energy plan ordinance that is adopted |
20 | | under Section 11-21.5-5 of the Illinois Municipal Code. |
21 | | (j) Information and data concerning the distribution |
22 | | of surcharge moneys collected and remitted by carriers |
23 | | under the Emergency Telephone System Act. |
24 | | (k) Law enforcement officer identification information |
25 | | or driver identification information compiled by a law |
26 | | enforcement agency or the Department of Transportation |
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| | 10300SB2234sam003 | - 59 - | LRB103 28770 RTM 71808 a |
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1 | | under Section 11-212 of the Illinois Vehicle Code. |
2 | | (l) Records and information provided to a residential |
3 | | health care facility resident sexual assault and death |
4 | | review team or the Executive Council under the Abuse |
5 | | Prevention Review Team Act. |
6 | | (m) Information provided to the predatory lending |
7 | | database created pursuant to Article 3 of the Residential |
8 | | Real Property Disclosure Act, except to the extent |
9 | | authorized under that Article. |
10 | | (n) Defense budgets and petitions for certification of |
11 | | compensation and expenses for court appointed trial |
12 | | counsel as provided under Sections 10 and 15 of the |
13 | | Capital Crimes Litigation Act (repealed) . This subsection |
14 | | (n) shall apply until the conclusion of the trial of the |
15 | | case, even if the prosecution chooses not to pursue the |
16 | | death penalty prior to trial or sentencing. |
17 | | (o) Information that is prohibited from being |
18 | | disclosed under Section 4 of the Illinois Health and |
19 | | Hazardous Substances Registry Act. |
20 | | (p) Security portions of system safety program plans, |
21 | | investigation reports, surveys, schedules, lists, data, or |
22 | | information compiled, collected, or prepared by or for the |
23 | | Department of Transportation under Sections 2705-300 and |
24 | | 2705-616 of the Department of Transportation Law of the |
25 | | Civil Administrative Code of Illinois, the Regional |
26 | | Transportation Authority under Section 2.11 of the |
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| | 10300SB2234sam003 | - 60 - | LRB103 28770 RTM 71808 a |
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1 | | Regional Transportation Authority Act, or the St. Clair |
2 | | County Transit District under the Bi-State Transit Safety |
3 | | Act (repealed) . |
4 | | (q) Information prohibited from being disclosed by the |
5 | | Personnel Record Review Act. |
6 | | (r) Information prohibited from being disclosed by the |
7 | | Illinois School Student Records Act. |
8 | | (s) Information the disclosure of which is restricted |
9 | | under Section 5-108 of the Public Utilities Act. |
10 | | (t) (Blank). |
11 | | (u) Records and information provided to an independent |
12 | | team of experts under the Developmental Disability and |
13 | | Mental Health Safety Act (also known as Brian's Law). |
14 | | (v) Names and information of people who have applied |
15 | | for or received Firearm Owner's Identification Cards under |
16 | | the Firearm Owners Identification Card Act or applied for |
17 | | or received a concealed carry license under the Firearm |
18 | | Concealed Carry Act, unless otherwise authorized by the |
19 | | Firearm Concealed Carry Act; and databases under the |
20 | | Firearm Concealed Carry Act, records of the Concealed |
21 | | Carry Licensing Review Board under the Firearm Concealed |
22 | | Carry Act, and law enforcement agency objections under the |
23 | | Firearm Concealed Carry Act. |
24 | | (v-5) Records of the Firearm Owner's Identification |
25 | | Card Review Board that are exempted from disclosure under |
26 | | Section 10 of the Firearm Owners Identification Card Act. |
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| | 10300SB2234sam003 | - 61 - | LRB103 28770 RTM 71808 a |
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1 | | (w) Personally identifiable information which is |
2 | | exempted from disclosure under subsection (g) of Section |
3 | | 19.1 of the Toll Highway Act. |
4 | | (x) Information which is exempted from disclosure |
5 | | under Section 5-1014.3 of the Counties Code or Section |
6 | | 8-11-21 of the Illinois Municipal Code. |
7 | | (y) Confidential information under the Adult |
8 | | Protective Services Act and its predecessor enabling |
9 | | statute, the Elder Abuse and Neglect Act, including |
10 | | information about the identity and administrative finding |
11 | | against any caregiver of a verified and substantiated |
12 | | decision of abuse, neglect, or financial exploitation of |
13 | | an eligible adult maintained in the Registry established |
14 | | under Section 7.5 of the Adult Protective Services Act. |
15 | | (z) Records and information provided to a fatality |
16 | | review team or the Illinois Fatality Review Team Advisory |
17 | | Council under Section 15 of the Adult Protective Services |
18 | | Act. |
19 | | (aa) Information which is exempted from disclosure |
20 | | under Section 2.37 of the Wildlife Code. |
21 | | (bb) Information which is or was prohibited from |
22 | | disclosure by the Juvenile Court Act of 1987. |
23 | | (cc) Recordings made under the Law Enforcement |
24 | | Officer-Worn Body Camera Act, except to the extent |
25 | | authorized under that Act. |
26 | | (dd) Information that is prohibited from being |
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| | 10300SB2234sam003 | - 62 - | LRB103 28770 RTM 71808 a |
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|
1 | | disclosed under Section 45 of the Condominium and Common |
2 | | Interest Community Ombudsperson Act. |
3 | | (ee) Information that is exempted from disclosure |
4 | | under Section 30.1 of the Pharmacy Practice Act. |
5 | | (ff) Information that is exempted from disclosure |
6 | | under the Revised Uniform Unclaimed Property Act. |
7 | | (gg) Information that is prohibited from being |
8 | | disclosed under Section 7-603.5 of the Illinois Vehicle |
9 | | Code. |
10 | | (hh) Records that are exempt from disclosure under |
11 | | Section 1A-16.7 of the Election Code. |
12 | | (ii) Information which is exempted from disclosure |
13 | | under Section 2505-800 of the Department of Revenue Law of |
14 | | the Civil Administrative Code of Illinois. |
15 | | (jj) Information and reports that are required to be |
16 | | submitted to the Department of Labor by registering day |
17 | | and temporary labor service agencies but are exempt from |
18 | | disclosure under subsection (a-1) of Section 45 of the Day |
19 | | and Temporary Labor Services Act. |
20 | | (kk) Information prohibited from disclosure under the |
21 | | Seizure and Forfeiture Reporting Act. |
22 | | (ll) Information the disclosure of which is restricted |
23 | | and exempted under Section 5-30.8 of the Illinois Public |
24 | | Aid Code. |
25 | | (mm) Records that are exempt from disclosure under |
26 | | Section 4.2 of the Crime Victims Compensation Act. |
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| | 10300SB2234sam003 | - 63 - | LRB103 28770 RTM 71808 a |
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1 | | (nn) Information that is exempt from disclosure under |
2 | | Section 70 of the Higher Education Student Assistance Act. |
3 | | (oo) Communications, notes, records, and reports |
4 | | arising out of a peer support counseling session |
5 | | prohibited from disclosure under the First Responders |
6 | | Suicide Prevention Act. |
7 | | (pp) Names and all identifying information relating to |
8 | | an employee of an emergency services provider or law |
9 | | enforcement agency under the First Responders Suicide |
10 | | Prevention Act. |
11 | | (qq) Information and records held by the Department of |
12 | | Public Health and its authorized representatives collected |
13 | | under the Reproductive Health Act. |
14 | | (rr) Information that is exempt from disclosure under |
15 | | the Cannabis Regulation and Tax Act. |
16 | | (ss) Data reported by an employer to the Department of |
17 | | Human Rights pursuant to Section 2-108 of the Illinois |
18 | | Human Rights Act. |
19 | | (tt) Recordings made under the Children's Advocacy |
20 | | Center Act, except to the extent authorized under that |
21 | | Act. |
22 | | (uu) Information that is exempt from disclosure under |
23 | | Section 50 of the Sexual Assault Evidence Submission Act. |
24 | | (vv) Information that is exempt from disclosure under |
25 | | subsections (f) and (j) of Section 5-36 of the Illinois |
26 | | Public Aid Code. |
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| | 10300SB2234sam003 | - 64 - | LRB103 28770 RTM 71808 a |
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1 | | (ww) Information that is exempt from disclosure under |
2 | | Section 16.8 of the State Treasurer Act. |
3 | | (xx) Information that is exempt from disclosure or |
4 | | information that shall not be made public under the |
5 | | Illinois Insurance Code. |
6 | | (yy) Information prohibited from being disclosed under |
7 | | the Illinois Educational Labor Relations Act. |
8 | | (zz) Information prohibited from being disclosed under |
9 | | the Illinois Public Labor Relations Act. |
10 | | (aaa) Information prohibited from being disclosed |
11 | | under Section 1-167 of the Illinois Pension Code. |
12 | | (bbb) Information that is prohibited from disclosure |
13 | | by the Illinois Police Training Act and the Illinois State |
14 | | Police Act. |
15 | | (ccc) Records exempt from disclosure under Section |
16 | | 2605-304 of the Illinois State Police Law of the Civil |
17 | | Administrative Code of Illinois. |
18 | | (ddd) Information prohibited from being disclosed |
19 | | under Section 35 of the Address Confidentiality for |
20 | | Victims of Domestic Violence, Sexual Assault, Human |
21 | | Trafficking, or Stalking Act. |
22 | | (eee) Information prohibited from being disclosed |
23 | | under subsection (b) of Section 75 of the Domestic |
24 | | Violence Fatality Review Act. |
25 | | (fff) Images from cameras under the Expressway Camera |
26 | | Act. This subsection (fff) is inoperative on and after |
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| | 10300SB2234sam003 | - 65 - | LRB103 28770 RTM 71808 a |
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1 | | July 1, 2025. |
2 | | (ggg) Information prohibited from disclosure under |
3 | | paragraph (3) of subsection (a) of Section 14 of the Nurse |
4 | | Agency Licensing Act. |
5 | | (hhh) Information submitted to the Illinois State |
6 | | Police in an affidavit or application for an assault |
7 | | weapon endorsement, assault weapon attachment endorsement, |
8 | | .50 caliber rifle endorsement, or .50 caliber cartridge |
9 | | endorsement under the Firearm Owners Identification Card |
10 | | Act. |
11 | | (iii) Data exempt from disclosure under Section 50 of |
12 | | the School Safety Drill Act. |
13 | | (jjj) (hhh) Information exempt from disclosure under |
14 | | Section 30 of the Insurance Data Security Law. |
15 | | (kkk) (iii) Confidential business information |
16 | | prohibited from disclosure under Section 45 of the Paint |
17 | | Stewardship Act. |
18 | | (lll) (Reserved). |
19 | | (mmm) (iii) Information prohibited from being |
20 | | disclosed under subsection (e) of Section 1-129 of the |
21 | | Illinois Power Agency Act. |
22 | | (nnn) Information exempt from disclosure under Section |
23 | | 165 of the Small Business Financing Transparency Act. |
24 | | (Source: P.A. 102-36, eff. 6-25-21; 102-237, eff. 1-1-22; |
25 | | 102-292, eff. 1-1-22; 102-520, eff. 8-20-21; 102-559, eff. |
26 | | 8-20-21; 102-813, eff. 5-13-22; 102-946, eff. 7-1-22; |
|
| | 10300SB2234sam003 | - 66 - | LRB103 28770 RTM 71808 a |
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|
1 | | 102-1042, eff. 6-3-22; 102-1116, eff. 1-10-23; 103-8, eff. |
2 | | 6-7-23; 103-34, eff. 6-9-23; 103-142, eff. 1-1-24; 103-372, |
3 | | eff. 1-1-24; 103-508, eff. 8-4-23; 103-580, eff. 12-8-23; |
4 | | revised 1-2-24.) |
5 | | (Text of Section after amendment by P.A. 103-472 ) |
6 | | Sec. 7.5. Statutory exemptions. To the extent provided for |
7 | | by the statutes referenced below, the following shall be |
8 | | exempt from inspection and copying: |
9 | | (a) All information determined to be confidential |
10 | | under Section 4002 of the Technology Advancement and |
11 | | Development Act. |
12 | | (b) Library circulation and order records identifying |
13 | | library users with specific materials under the Library |
14 | | Records Confidentiality Act. |
15 | | (c) Applications, related documents, and medical |
16 | | records received by the Experimental Organ Transplantation |
17 | | Procedures Board and any and all documents or other |
18 | | records prepared by the Experimental Organ Transplantation |
19 | | Procedures Board or its staff relating to applications it |
20 | | has received. |
21 | | (d) Information and records held by the Department of |
22 | | Public Health and its authorized representatives relating |
23 | | to known or suspected cases of sexually transmissible |
24 | | disease or any information the disclosure of which is |
25 | | restricted under the Illinois Sexually Transmissible |
|
| | 10300SB2234sam003 | - 67 - | LRB103 28770 RTM 71808 a |
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|
1 | | Disease Control Act. |
2 | | (e) Information the disclosure of which is exempted |
3 | | under Section 30 of the Radon Industry Licensing Act. |
4 | | (f) Firm performance evaluations under Section 55 of |
5 | | the Architectural, Engineering, and Land Surveying |
6 | | Qualifications Based Selection Act. |
7 | | (g) Information the disclosure of which is restricted |
8 | | and exempted under Section 50 of the Illinois Prepaid |
9 | | Tuition Act. |
10 | | (h) Information the disclosure of which is exempted |
11 | | under the State Officials and Employees Ethics Act, and |
12 | | records of any lawfully created State or local inspector |
13 | | general's office that would be exempt if created or |
14 | | obtained by an Executive Inspector General's office under |
15 | | that Act. |
16 | | (i) Information contained in a local emergency energy |
17 | | plan submitted to a municipality in accordance with a |
18 | | local emergency energy plan ordinance that is adopted |
19 | | under Section 11-21.5-5 of the Illinois Municipal Code. |
20 | | (j) Information and data concerning the distribution |
21 | | of surcharge moneys collected and remitted by carriers |
22 | | under the Emergency Telephone System Act. |
23 | | (k) Law enforcement officer identification information |
24 | | or driver identification information compiled by a law |
25 | | enforcement agency or the Department of Transportation |
26 | | under Section 11-212 of the Illinois Vehicle Code. |
|
| | 10300SB2234sam003 | - 68 - | LRB103 28770 RTM 71808 a |
|
|
1 | | (l) Records and information provided to a residential |
2 | | health care facility resident sexual assault and death |
3 | | review team or the Executive Council under the Abuse |
4 | | Prevention Review Team Act. |
5 | | (m) Information provided to the predatory lending |
6 | | database created pursuant to Article 3 of the Residential |
7 | | Real Property Disclosure Act, except to the extent |
8 | | authorized under that Article. |
9 | | (n) Defense budgets and petitions for certification of |
10 | | compensation and expenses for court appointed trial |
11 | | counsel as provided under Sections 10 and 15 of the |
12 | | Capital Crimes Litigation Act (repealed) . This subsection |
13 | | (n) shall apply until the conclusion of the trial of the |
14 | | case, even if the prosecution chooses not to pursue the |
15 | | death penalty prior to trial or sentencing. |
16 | | (o) Information that is prohibited from being |
17 | | disclosed under Section 4 of the Illinois Health and |
18 | | Hazardous Substances Registry Act. |
19 | | (p) Security portions of system safety program plans, |
20 | | investigation reports, surveys, schedules, lists, data, or |
21 | | information compiled, collected, or prepared by or for the |
22 | | Department of Transportation under Sections 2705-300 and |
23 | | 2705-616 of the Department of Transportation Law of the |
24 | | Civil Administrative Code of Illinois, the Regional |
25 | | Transportation Authority under Section 2.11 of the |
26 | | Regional Transportation Authority Act, or the St. Clair |
|
| | 10300SB2234sam003 | - 69 - | LRB103 28770 RTM 71808 a |
|
|
1 | | County Transit District under the Bi-State Transit Safety |
2 | | Act (repealed) . |
3 | | (q) Information prohibited from being disclosed by the |
4 | | Personnel Record Review Act. |
5 | | (r) Information prohibited from being disclosed by the |
6 | | Illinois School Student Records Act. |
7 | | (s) Information the disclosure of which is restricted |
8 | | under Section 5-108 of the Public Utilities Act. |
9 | | (t) (Blank). |
10 | | (u) Records and information provided to an independent |
11 | | team of experts under the Developmental Disability and |
12 | | Mental Health Safety Act (also known as Brian's Law). |
13 | | (v) Names and information of people who have applied |
14 | | for or received Firearm Owner's Identification Cards under |
15 | | the Firearm Owners Identification Card Act or applied for |
16 | | or received a concealed carry license under the Firearm |
17 | | Concealed Carry Act, unless otherwise authorized by the |
18 | | Firearm Concealed Carry Act; and databases under the |
19 | | Firearm Concealed Carry Act, records of the Concealed |
20 | | Carry Licensing Review Board under the Firearm Concealed |
21 | | Carry Act, and law enforcement agency objections under the |
22 | | Firearm Concealed Carry Act. |
23 | | (v-5) Records of the Firearm Owner's Identification |
24 | | Card Review Board that are exempted from disclosure under |
25 | | Section 10 of the Firearm Owners Identification Card Act. |
26 | | (w) Personally identifiable information which is |
|
| | 10300SB2234sam003 | - 70 - | LRB103 28770 RTM 71808 a |
|
|
1 | | exempted from disclosure under subsection (g) of Section |
2 | | 19.1 of the Toll Highway Act. |
3 | | (x) Information which is exempted from disclosure |
4 | | under Section 5-1014.3 of the Counties Code or Section |
5 | | 8-11-21 of the Illinois Municipal Code. |
6 | | (y) Confidential information under the Adult |
7 | | Protective Services Act and its predecessor enabling |
8 | | statute, the Elder Abuse and Neglect Act, including |
9 | | information about the identity and administrative finding |
10 | | against any caregiver of a verified and substantiated |
11 | | decision of abuse, neglect, or financial exploitation of |
12 | | an eligible adult maintained in the Registry established |
13 | | under Section 7.5 of the Adult Protective Services Act. |
14 | | (z) Records and information provided to a fatality |
15 | | review team or the Illinois Fatality Review Team Advisory |
16 | | Council under Section 15 of the Adult Protective Services |
17 | | Act. |
18 | | (aa) Information which is exempted from disclosure |
19 | | under Section 2.37 of the Wildlife Code. |
20 | | (bb) Information which is or was prohibited from |
21 | | disclosure by the Juvenile Court Act of 1987. |
22 | | (cc) Recordings made under the Law Enforcement |
23 | | Officer-Worn Body Camera Act, except to the extent |
24 | | authorized under that Act. |
25 | | (dd) Information that is prohibited from being |
26 | | disclosed under Section 45 of the Condominium and Common |
|
| | 10300SB2234sam003 | - 71 - | LRB103 28770 RTM 71808 a |
|
|
1 | | Interest Community Ombudsperson Act. |
2 | | (ee) Information that is exempted from disclosure |
3 | | under Section 30.1 of the Pharmacy Practice Act. |
4 | | (ff) Information that is exempted from disclosure |
5 | | under the Revised Uniform Unclaimed Property Act. |
6 | | (gg) Information that is prohibited from being |
7 | | disclosed under Section 7-603.5 of the Illinois Vehicle |
8 | | Code. |
9 | | (hh) Records that are exempt from disclosure under |
10 | | Section 1A-16.7 of the Election Code. |
11 | | (ii) Information which is exempted from disclosure |
12 | | under Section 2505-800 of the Department of Revenue Law of |
13 | | the Civil Administrative Code of Illinois. |
14 | | (jj) Information and reports that are required to be |
15 | | submitted to the Department of Labor by registering day |
16 | | and temporary labor service agencies but are exempt from |
17 | | disclosure under subsection (a-1) of Section 45 of the Day |
18 | | and Temporary Labor Services Act. |
19 | | (kk) Information prohibited from disclosure under the |
20 | | Seizure and Forfeiture Reporting Act. |
21 | | (ll) Information the disclosure of which is restricted |
22 | | and exempted under Section 5-30.8 of the Illinois Public |
23 | | Aid Code. |
24 | | (mm) Records that are exempt from disclosure under |
25 | | Section 4.2 of the Crime Victims Compensation Act. |
26 | | (nn) Information that is exempt from disclosure under |
|
| | 10300SB2234sam003 | - 72 - | LRB103 28770 RTM 71808 a |
|
|
1 | | Section 70 of the Higher Education Student Assistance Act. |
2 | | (oo) Communications, notes, records, and reports |
3 | | arising out of a peer support counseling session |
4 | | prohibited from disclosure under the First Responders |
5 | | Suicide Prevention Act. |
6 | | (pp) Names and all identifying information relating to |
7 | | an employee of an emergency services provider or law |
8 | | enforcement agency under the First Responders Suicide |
9 | | Prevention Act. |
10 | | (qq) Information and records held by the Department of |
11 | | Public Health and its authorized representatives collected |
12 | | under the Reproductive Health Act. |
13 | | (rr) Information that is exempt from disclosure under |
14 | | the Cannabis Regulation and Tax Act. |
15 | | (ss) Data reported by an employer to the Department of |
16 | | Human Rights pursuant to Section 2-108 of the Illinois |
17 | | Human Rights Act. |
18 | | (tt) Recordings made under the Children's Advocacy |
19 | | Center Act, except to the extent authorized under that |
20 | | Act. |
21 | | (uu) Information that is exempt from disclosure under |
22 | | Section 50 of the Sexual Assault Evidence Submission Act. |
23 | | (vv) Information that is exempt from disclosure under |
24 | | subsections (f) and (j) of Section 5-36 of the Illinois |
25 | | Public Aid Code. |
26 | | (ww) Information that is exempt from disclosure under |
|
| | 10300SB2234sam003 | - 73 - | LRB103 28770 RTM 71808 a |
|
|
1 | | Section 16.8 of the State Treasurer Act. |
2 | | (xx) Information that is exempt from disclosure or |
3 | | information that shall not be made public under the |
4 | | Illinois Insurance Code. |
5 | | (yy) Information prohibited from being disclosed under |
6 | | the Illinois Educational Labor Relations Act. |
7 | | (zz) Information prohibited from being disclosed under |
8 | | the Illinois Public Labor Relations Act. |
9 | | (aaa) Information prohibited from being disclosed |
10 | | under Section 1-167 of the Illinois Pension Code. |
11 | | (bbb) Information that is prohibited from disclosure |
12 | | by the Illinois Police Training Act and the Illinois State |
13 | | Police Act. |
14 | | (ccc) Records exempt from disclosure under Section |
15 | | 2605-304 of the Illinois State Police Law of the Civil |
16 | | Administrative Code of Illinois. |
17 | | (ddd) Information prohibited from being disclosed |
18 | | under Section 35 of the Address Confidentiality for |
19 | | Victims of Domestic Violence, Sexual Assault, Human |
20 | | Trafficking, or Stalking Act. |
21 | | (eee) Information prohibited from being disclosed |
22 | | under subsection (b) of Section 75 of the Domestic |
23 | | Violence Fatality Review Act. |
24 | | (fff) Images from cameras under the Expressway Camera |
25 | | Act. This subsection (fff) is inoperative on and after |
26 | | July 1, 2025. |
|
| | 10300SB2234sam003 | - 74 - | LRB103 28770 RTM 71808 a |
|
|
1 | | (ggg) Information prohibited from disclosure under |
2 | | paragraph (3) of subsection (a) of Section 14 of the Nurse |
3 | | Agency Licensing Act. |
4 | | (hhh) Information submitted to the Illinois State |
5 | | Police in an affidavit or application for an assault |
6 | | weapon endorsement, assault weapon attachment endorsement, |
7 | | .50 caliber rifle endorsement, or .50 caliber cartridge |
8 | | endorsement under the Firearm Owners Identification Card |
9 | | Act. |
10 | | (iii) Data exempt from disclosure under Section 50 of |
11 | | the School Safety Drill Act. |
12 | | (jjj) (hhh) Information exempt from disclosure under |
13 | | Section 30 of the Insurance Data Security Law. |
14 | | (kkk) (iii) Confidential business information |
15 | | prohibited from disclosure under Section 45 of the Paint |
16 | | Stewardship Act. |
17 | | (lll) (iii) Data exempt from disclosure under Section |
18 | | 2-3.196 of the School Code. |
19 | | (mmm) (iii) Information prohibited from being |
20 | | disclosed under subsection (e) of Section 1-129 of the |
21 | | Illinois Power Agency Act. |
22 | | (nnn) Information exempt from disclosure under Section |
23 | | 165 of the Small Business Financing Transparency Act. |
24 | | (Source: P.A. 102-36, eff. 6-25-21; 102-237, eff. 1-1-22; |
25 | | 102-292, eff. 1-1-22; 102-520, eff. 8-20-21; 102-559, eff. |
26 | | 8-20-21; 102-813, eff. 5-13-22; 102-946, eff. 7-1-22; |
|
| | 10300SB2234sam003 | - 75 - | LRB103 28770 RTM 71808 a |
|
|
1 | | 102-1042, eff. 6-3-22; 102-1116, eff. 1-10-23; 103-8, eff. |
2 | | 6-7-23; 103-34, eff. 6-9-23; 103-142, eff. 1-1-24; 103-372, |
3 | | eff. 1-1-24; 103-472, eff. 8-1-24; 103-508, eff. 8-4-23; |
4 | | 103-580, eff. 12-8-23; revised 1-2-24.) |
5 | | Section 905. The Consumer Fraud and Deceptive Business |
6 | | Practices Act is amended by adding Section 2EEEE as follows: |
7 | | (815 ILCS 505/2EEEE new) |
8 | | Sec. 2EEEE. Violations of the Small Business Financing |
9 | | Transparency Act. Any person who violates the Small Business |
10 | | Financing Transparency Act commits an unlawful practice within |
11 | | the meaning of this Act. |
12 | | Section 995. No acceleration or delay. Where this Act |
13 | | makes changes in a statute that is represented in this Act by |
14 | | text that is not yet or no longer in effect (for example, a |
15 | | Section represented by multiple versions), the use of that |
16 | | text does not accelerate or delay the taking effect of (i) the |
17 | | changes made by this Act or (ii) provisions derived from any |
18 | | other Public Act. |
19 | | Section 999. Effective date. This Act takes effect upon |
20 | | becoming law.". |