Rep. Michael J. Zalewski

Filed: 3/24/2014

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 5674

2    AMENDMENT NO. ______. Amend House Bill 5674 as follows:
 
3on page 31, immediately below line 12, by inserting the
4following:
 
5    "Section 5. The Limited Liability Company Act is amended by
6changing Sections 1-10, 1-25, 1-28, 5-5, and 5-55 and by adding
7Section 1-29 as follows:
 
8    (805 ILCS 180/1-10)
9    Sec. 1-10. Limited liability company name.
10    (a) The name of each limited liability company as set forth
11in its articles of organization:
12        (1) shall contain the terms "limited liability
13    company", "L.L.C.", or "LLC", or, if organized as a
14    low-profit limited liability company under Section 1-26 of
15    this Act, shall contain the term "L3C";

 

 

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1        (2) may not contain a word or phrase, or an
2    abbreviation or derivation thereof, the use of which is
3    prohibited or restricted by any other statute of this State
4    unless the restriction has been complied with;
5        (3) shall consist of letters of the English alphabet,
6    Arabic or Roman numerals, or symbols capable of being
7    readily reproduced by the Office of the Secretary of State;
8        (4) shall not contain any of the following terms:
9    "Corporation," "Corp.," "Incorporated," "Inc.," "Ltd.,"
10    "Co.," "Limited Partnership" or "L.P.";
11        (5) shall be the name under which the limited liability
12    company transacts business in this State unless the limited
13    liability company also elects to adopt an assumed name or
14    names as provided in this Act; provided, however, that the
15    limited liability company may use any divisional
16    designation or trade name without complying with the
17    requirements of this Act, provided the limited liability
18    company also clearly discloses its name;
19        (6) shall not contain any word or phrase that indicates
20    or implies that the limited liability company is authorized
21    or empowered to be in the business of a corporate fiduciary
22    unless otherwise permitted by the Secretary of Financial
23    and Professional Regulation Commissioner of the Office of
24    Banks and Real Estate under Section 1-9 of the Corporate
25    Fiduciary Act. The word "trust", "trustee", or "fiduciary"
26    may be used by a limited liability company only if it has

 

 

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1    first complied with Section 1-9 of the Corporate Fiduciary
2    Act; and
3        (7) shall contain the word "trust", if it is a limited
4    liability company organized for the purpose of accepting
5    and executing trusts; and
6        (8) shall not, as to any limited liability company
7    organized or amending its company name on or after April 3,
8    2009 (the effective date of Public Act 96-7), without the
9    express written consent of the United States Olympic
10    Committee, contain the words: (i) "Olympic"; (ii)
11    "Olympiad"; (iii) "Paralympic"; (iv) "Paralympiad"; (v)
12    "Citius Altius Fortius"; (vi) "CHICOG"; or (vii) "Chicago
13    2016".
14    (b) Nothing in this Section or Section 1-20 shall abrogate
15or limit the common law or statutory law of unfair competition
16or unfair trade practices, nor derogate from the common law or
17principles of equity or the statutes of this State or of the
18United States of America with respect to the right to acquire
19and protect copyrights, trade names, trademarks, service
20marks, service names, or any other right to the exclusive use
21of names or symbols.
22    (c) (Blank).
23    (d) The name shall be distinguishable upon the records in
24the Office of the Secretary of State from all of the following:
25        (1) Any limited liability company that has articles of
26    organization filed with the Secretary of State under

 

 

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1    Section 5-5.
2        (2) Any foreign limited liability company admitted to
3    transact business in this State.
4        (3) Any name for which an exclusive right has been
5    reserved in the Office of the Secretary of State under
6    Section 1-15.
7        (4) Any assumed name that is registered with the
8    Secretary of State under Section 1-20.
9        (5) Any corporate name or assumed corporate name of a
10    domestic or foreign corporation subject to the provisions
11    of Section 4.05 of the Business Corporation Act of 1983 or
12    Section 104.05 of the General Not For Profit Corporation
13    Act of 1986.
14    (e) The provisions of subsection (d) of this Section shall
15not apply if the organizer files with the Secretary of State a
16certified copy of a final decree of a court of competent
17jurisdiction establishing the prior right of the applicant to
18the use of that name in this State.
19    (f) The Secretary of State shall determine whether a name
20is "distinguishable" from another name for the purposes of this
21Act. Without excluding other names that may not constitute
22distinguishable names in this State, a name is not considered
23distinguishable, for purposes of this Act, solely because it
24contains one or more of the following:
25        (1) The word "limited", "liability" or "company" or an
26    abbreviation of one of those words.

 

 

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1        (2) Articles, conjunctions, contractions,
2    abbreviations, or different tenses or number of the same
3    word.
4(Source: P.A. 96-7, eff. 4-3-09; 96-126, eff. 1-1-10; 96-1000,
5eff. 7-2-10.)
 
6    (805 ILCS 180/1-25)
7    Sec. 1-25. Nature of business. A limited liability company
8may be formed for any lawful purpose or business except:
9        (1) (blank);
10        (2) insurance unless, for the purpose of carrying on
11    business as a member of a group including incorporated and
12    individual unincorporated underwriters, the Director of
13    Insurance finds that the group meets the requirements of
14    subsection (3) of Section 86 of the Illinois Insurance Code
15    and the limited liability company, if insolvent, is subject
16    to liquidation by the Director of Insurance under Article
17    XIII of the Illinois Insurance Code;
18        (3) the practice of dentistry unless all the members
19    and managers are licensed as dentists under the Illinois
20    Dental Practice Act; or
21        (4) the practice of medicine unless all the managers,
22    if any, are licensed to practice medicine under the Medical
23    Practice Act of 1987 and each member is either:
24            (A) licensed to practice medicine under the
25        Medical Practice Act of 1987; or

 

 

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1            (B) a registered medical corporation or
2        corporations organized pursuant to the Medical
3        Corporation Act; or
4            (C) a professional corporation organized pursuant
5        to the Professional Service Corporation Act of
6        physicians licensed to practice under the Medical
7        Practice Act of 1987; or
8            (D) a limited liability company that satisfies the
9        requirements of subparagraph (A), (B), or (C); or .
10        (5) the practice of real estate unless all the
11    managers, if any, or every member in a member-managed
12    company are licensed to practice as a managing broker or
13    broker pursuant to the Real Estate License Act of 2000.
14(Source: P.A. 95-331, eff. 8-21-07; 95-738, eff. 1-1-09.)
 
15    (805 ILCS 180/1-28)
16    Sec. 1-28. Certificate of Registration; Department of
17Financial and Professional Regulation. This Section applies
18only to a limited liability company that intends to provide, or
19does provide, professional services that require the
20individuals engaged in the profession to be licensed by the
21Department of Financial and Professional Regulation. A limited
22liability company covered by this Section shall not open,
23operate, or maintain an establishment for any of the purposes
24for which a limited liability company may be organized under
25this Act without obtaining a certificate of registration from

 

 

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1the Department.
2    Application for such registration shall be made in writing
3and shall contain the name and address of the limited liability
4company and such other information as may be required by the
5Department. Upon receipt of such application, the Department
6shall make an investigation of the limited liability company.
7If the Department finds that the organizers, managers, and
8members are each licensed pursuant to the laws of Illinois to
9engage in the particular profession or related professions
10involved (except that an initial organizer may be a licensed
11attorney) and if no disciplinary action is pending before the
12Department against any of them and if it appears that the
13limited liability company will be conducted in compliance with
14the law and the rules and regulations of the Department, the
15Department shall issue, upon payment of a registration fee of
16$50, a certificate of registration.
17    A separate application shall be submitted for each business
18location in Illinois. If the limited liability company is using
19more than one fictitious or assumed name and has an address
20different from that of the parent company, a separate
21application shall be submitted for each fictitious or assumed
22name.
23    Upon written application of the holder, the Department
24shall renew the certificate if it finds that the limited
25liability company has complied with its regulations and the
26provisions of this Act and the applicable licensing Act. This

 

 

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1fee for the renewal of a certificate of registration shall be
2calculated at the rate of $40 per year. The certificate of
3registration shall be conspicuously posted upon the premises to
4which it is applicable, and the limited liability company shall
5have only those offices which are designated by street address
6in the articles of organization, or as changed by amendment of
7such articles. A certificate of registration shall not be
8assignable.
9    A limited liability company registered under this Section
10may, for the purposes of dissolution, have as its managers and
11members individuals who are not licensed by the Department to
12provide professional services, provided that the limited
13liability company does not render any professional services or
14hold itself out as capable or available to render any
15professional services during the period of dissolution. The
16Department shall not issue or renew any certificate of
17registration to a limited liability company during the period
18of dissolution. A copy of the certificate of dissolution, as
19issued by the Secretary of State, shall be delivered to the
20Department within 30 days after its receipt by the managers or
21members.
22    All fees, civil penalties, and fines collected under this
23Section and Section 1-29 shall be deposited into the General
24Professions Dedicated Fund.
25(Source: P.A. 96-679, eff. 8-25-09; 96-984, eff. 1-1-11;
2696-1000, eff. 7-2-10.)
 

 

 

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1    (805 ILCS 180/1-29 new)
2    Sec. 1-29. Certificate of registration; administration and
3enforcement.
4    This Section applies to a limited liability company subject
5to Section 1-28 of this Act.
6    No limited liability company organized under this Act may
7render professional services that require the issuance of a
8license by the Department, except through its managers,
9members, agents, or employees who are duly licensed or
10otherwise legally authorized to render such professional
11services within this State.
12    Nothing contained in this Act shall be interpreted to
13abolish, repeal, modify, restrict, or limit the law in effect
14in this State on the effective date of this amendatory Act of
15the 98th General Assembly that is applicable to the
16professional relationship and liabilities between the person
17furnishing the professional services and the person receiving
18such professional services or the law that is applicable to the
19standards for professional conduct. Any manager, member,
20agent, or employee of a limited liability company shall remain
21personally and fully liable and accountable for any negligent
22or wrongful acts or misconduct committed by him or her or by
23any person under his or her direct supervision and control
24while rendering professional services on behalf of the limited
25liability company. However, a limited liability company

 

 

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1subject to Section 1-28 shall have no greater liability for the
2conduct of its agents than any other limited liability company
3organized under this Act. The limited liability company shall
4be liable up to the full value of its property for any
5negligence or wrongful acts or misconduct committed by any of
6its managers, members, agents, or employees while they are
7engaged in the rendering of professional services on behalf of
8the limited liability company.
9    An individual's association with a limited liability
10company as a manager, member, agent, or employee, shall in no
11way modify or diminish the jurisdiction of the Department that
12licensed, certified, or registered the individual for a
13particular profession.
14    All rights and obligations pertaining to communications
15made to or information received by any qualified person or the
16advice he or she gives on such communications or information,
17shall be extended to the limited liability company of which he
18or she is a manager, member, agent, or employee, and to the
19limited liability company's managers, members, agents, and
20employees.
21    Any limited liability company that, on 2 occasions, issues
22or delivers a check or other order to the Department that is
23not honored by the financial institution upon which it is drawn
24because of insufficient funds on the account, shall pay to the
25Department, in addition to the amount owing upon such check or
26other order, a fee of $50. If such check or other order was

 

 

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1issued or delivered in payment of a renewal fee and the limited
2liability company whose certification of registration has
3lapsed continues to practice as a limited liability company
4without paying the renewal fee and the $50 fee required under
5this Section, an additional fee of $100 shall be imposed for
6practicing without a current license. The Department shall
7notify the limited liability company whose certificate of
8registration has lapsed within 30 days after the discovery by
9the Department that such limited liability company is operating
10without a current certificate of the fact that the limited
11liability company is operating without a certificate and of the
12amount due to the Department, which shall include the lapsed
13renewal fee and all other fees required by this Section. If the
14limited liability company whose certification has lapsed seeks
15a current certificate more than 30 days after the date it
16receives notification from the Department, it shall be required
17to apply to the Department for reinstatement of the certificate
18and to pay all fees due to the Department. The Department may
19establish a fee for the processing of an application for
20reinstatement of a certificate that allows the Department to
21pay all costs and expenses related to the processing of the
22application. The Director may waive the fees due under this
23Section in individual cases where he or she finds that in the
24particular case such fees would be unreasonable or
25unnecessarily burdensome.
26    The Department may suspend, revoke, or otherwise

 

 

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1discipline the certificate of registration for any of the
2following reasons:
3        (1) the revocation or suspension of the license to
4    practice the profession of any officer, manager, member,
5    agent, or employee not promptly removed or discharged by
6    the limited liability company;
7        (2) unethical professional conduct on the part of any
8    officer, manager, member, agent, or employee not promptly
9    removed or discharged by the limited liability company;
10        (3) the death of the last remaining member;
11        (4) upon finding that the holder of the certificate has
12    failed to comply with the provisions of this Act or the
13    regulations prescribed by the Department; or
14        (5) the failure to file a return, to pay the tax,
15    penalty, or interest shown in a filed return, or to pay any
16    final assessment of tax, penalty, or interest, as required
17    by a tax Act administered by the Illinois Department of
18    Revenue, until such time as the requirements of any such
19    tax Act are satisfied.
20    Before any certificate of registration is suspended or
21revoked, the holder shall be given written notice of the
22proposed action and the reasons for the proposed action and
23shall be provided a public hearing by the Department with the
24right to produce testimony and other evidence concerning the
25charges made. The notice shall also state the place and date of
26the hearing, which shall be at least 10 days after service of

 

 

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1the notice.
2    All orders of the Department denying an application for a
3certificate of registration or suspending or revoking a
4certificate of registration or imposing a civil penalty shall
5be subject to judicial review pursuant to the Administrative
6Review Law.
7    The proceedings for judicial review shall be commenced in
8the circuit court of the county in which the party applying for
9review is located; but if the party is not currently located in
10Illinois, the venue shall be in Sangamon County. The Department
11shall not be required to certify any record to the court or
12file any answer in court or otherwise appear in any court in a
13judicial review proceeding, unless and until the Department has
14received from the plaintiff payment of the costs of furnishing
15and certifying the record, which costs shall be determined by
16the Department. Exhibits shall be certified without cost.
17Failure on the part of the plaintiff to file a receipt in court
18is grounds for dismissal of the action.
19    Whenever the Department has reason to believe a limited
20liability company has opened, operated, or maintained an
21establishment for any of the purposes for which a limited
22liability company may be organized under this Act without a
23certificate of registration from the Department authorized by
24law to license individuals to engage in the profession or
25related professions, the Department may issue a notice of
26violation to the limited liability company. The notice of

 

 

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1violation shall provide a period of 30 days after the date of
2the notice to either file an answer to the satisfaction of the
3Department or submit an application for registration in
4compliance with this Act, including payment of the $50
5application fee and a late fee of $100 for each year that the
6limited liability company opened, operated, or maintained an
7establishment for any of the purposes for which a limited
8liability company may be organized under this Act without
9having been issued a certificate of registration, with a
10maximum late fee of $500. If the limited liability company that
11is the subject of the notice of violation fails to respond,
12fails to respond to the satisfaction of the Department, or
13fails to submit an application for registration, the Department
14may institute disciplinary proceedings against the limited
15liability company and may impose a civil penalty up to $10,000
16for violation of this Act after affording the limited liability
17company a hearing in conformance with the requirements of this
18Act.
 
19    (805 ILCS 180/5-5)
20    Sec. 5-5. Articles of organization.
21    (a) The articles of organization shall set forth all of the
22following:
23        (1) The name of the limited liability company and the
24    address of its principal place of business which may, but
25    need not be a place of business in this State.

 

 

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1        (2) The purposes for which the limited liability
2    company is organized, which may be stated to be, or to
3    include, the transaction of any or all lawful businesses
4    for which limited liability companies may be organized
5    under this Act.
6        (3) The name of its registered agent and the address of
7    its registered office.
8        (4) If the limited liability company is to be managed
9    by a manager or managers, the names and business addresses
10    of the initial manager or managers.
11        (5) If management of the limited liability company is
12    to be vested in the members under Section 15-1, then the
13    names and addresses of the initial member or members.
14        (5.5) The duration of the limited liability company,
15    which shall be perpetual unless otherwise stated.
16        (6) (Blank).
17        (7) The name and address of each organizer.
18        (8) Any other provision, not inconsistent with law,
19    that the members elect to set out in the articles of
20    organization for the regulation of the internal affairs of
21    the limited liability company, including any provisions
22    that, under this Act, are required or permitted to be set
23    out in the operating agreement of the limited liability
24    company.
25    (b) A limited liability company is organized at the time
26articles of organization are filed by the Secretary of State or

 

 

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1at any later time, not more than 60 days after the filing of
2the articles of organization, specified in the articles of
3organization.
4    (c) Articles of organization for the organization of a
5limited liability company for the purpose of accepting and
6executing trusts shall not be filed by the Secretary of State
7until there is delivered to him or her a statement executed by
8the Secretary of Financial and Professional Regulation
9Commissioner of the Office of Banks and Real Estate that the
10organizers of the limited liability company have made
11arrangements with the Secretary of Financial and Professional
12Regulation Commissioner of the Office of Banks and Real Estate
13to comply with the Corporate Fiduciary Act.
14    (d) Articles of organization for the organization of a
15limited liability company as a bank or a savings bank must be
16filed with the Department of Financial and Professional
17Regulation Commissioner of Banks and Real Estate or, if the
18bank or savings bank will be organized under federal law, with
19the appropriate federal banking regulator.
20(Source: P.A. 98-171, eff. 8-5-13.)
 
21    (805 ILCS 180/5-55)
22    Sec. 5-55. Filing in Office of Secretary of State.
23    (a) Whenever any provision of this Act requires a limited
24liability company to file any document with the Office of the
25Secretary of State, the requirement means that:

 

 

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1        (1) the original document, executed as described in
2    Section 5-45, and, if required by this Act to be filed in
3    duplicate, one copy (which may be a signed carbon or
4    photocopy) shall be delivered to the Office of the
5    Secretary of State;
6        (2) all fees and charges authorized by law to be
7    collected by the Secretary of State in connection with the
8    filing of the document shall be tendered to the Secretary
9    of State; and
10        (3) unless the Secretary of State finds that the
11    document does not conform to law, he or she shall, when all
12    fees have been paid:
13            (A) endorse on the original and on the copy the
14        word "Filed" and the month, day, and year of the filing
15        thereof;
16            (B) file in his or her office the original of the
17        document; and
18            (C) return the copy to the person who filed it or
19        to that person's representative.
20    (b) If another Section of this Act specifically prescribes
21a manner of filing or signing a specified document that differs
22from the corresponding provisions of this Section, then the
23provisions of the other Section shall govern.
24    (c) Whenever any provision of this Act requires a limited
25liability company that is a bank or a savings bank to file any
26document, that requirement means that the filing shall be made

 

 

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1exclusively with the Department of Financial and Professional
2Regulation Commissioner of Banks and Real Estate or, if the
3bank or savings bank is organized under federal law, with the
4appropriate federal banking regulator at such times and in such
5manner as required by the Department Commissioner or federal
6regulator.
7(Source: P.A. 92-33, eff. 7-1-01; 93-561, eff. 1-1-04.)".