093_HB1089enr

 
HB1089 Enrolled                      LRB093 04120 RLC 04160 b

 1        AN ACT in relation to criminal law.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Criminal  Code  of  1961  is  amended  by
 5    adding Article 37.5 as follows:

 6        (720 ILCS 5/Art. 37.5 heading new)
 7              ARTICLE 37.5. ANIMAL FIGHTING; FORFEITURE

 8        (720 ILCS 5/37.5-5 new)
 9        Sec.   37.5-5.  Legislative   declaration.   The  General
10    Assembly finds that the forfeiture of real property  that  is
11    used  or  intended  to  be  used in connection with any show,
12    exhibition, program or other activity featuring or  otherwise
13    involving  a  fight between an animal and any other animal or
14    human or the  intentional  killing  of  any  animal  for  the
15    purpose  of  sport,  wagering  or  entertainment, will have a
16    significant  beneficial  effect  in  deterring   the   rising
17    incidence  of  those activities within this State, as well as
18    other crimes that frequently occur in partnership with animal
19    fighting, such as illegal gambling, possession of  narcotics,
20    and weapons violations.

21        (720 ILCS 5/37.5-10 new)
22        Sec.  37.5-10.  Applicability.  A  person  who  commits a
23    felony violation of Section  4.01  of  the  Humane  Care  for
24    Animals  Act  or  a  felony violation of Section 26-5 of this
25    Code shall forfeit (i) any moneys, profits, or  proceeds  the
26    person  acquired  in  whole  or  in  part,  as  a  result  of
27    committing  the  violation  and  (ii)  any  real  property or
28    interest  in  real  property  that   the   sentencing   court
29    determines  the  person  acquired  in  whole or in part, as a
 
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 1    result of committing the violation or the  person  maintained
 2    or  used  in  whole  or  in  part, to facilitate, directly or
 3    indirectly, the commission of the violation. The person shall
 4    forfeit any interest in, securities,  or  claim  against,  or
 5    contractual  right  of  any  kind  that  affords the person a
 6    source of influence over, any enterprise that the person  has
 7    established, operated, controlled, conducted, or participated
 8    in conducting if the person's relations to or connection with
 9    the  interest,  security,  or  claim,  or  contractual right,
10    directly or indirectly, in whole or in part, is traceable  to
11    any thing or benefit that the person has obtained or acquired
12    as  a  result  of  a  felony violation of Section 4.01 of the
13    Humane Care for Animals Act or a felony violation of  Section
14    26-5 of this Code.

15        (720 ILCS 5/37.5-15 new)
16        Sec. 37.5-15.  Real property forfeiture.
17        (a)  Following  the arrest of a person or persons for any
18    felony offense under Section 4.01  of  the  Humane  Care  for
19    Animals  Act  or  a felony offense under Section 26-5 of this
20    Code, the State's Attorney of the county in which it occurred
21    or the Attorney General  may  seek  forfeiture  of  the  real
22    property  associated  with  the  offense,  whether  the  real
23    property   belongs   to   the  person  organizing  the  show,
24    exhibition, program, or  other  such  activity  described  in
25    subsections  (a)  through  (g)  of Section 4.01 of the Humane
26    Care for Animals Act or Section 26-5 of this Code or  to  any
27    other  person  participating  in  the  activity  described in
28    subsections (a) through (g) of Section  4.01  of  the  Humane
29    Care  for  Animals  Act  or Section 26-5 of this Code, who is
30    related to the organization and operation of the activity  or
31    to  any  person who knowingly allowed the activities to occur
32    on his or her premises.
33        (b)  Real  property  includes  any  land,  home,   house,
 
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 1    apartment,  building,  garage,  site, structure, or facility,
 2    whether enclosed or not, and any part or section of any land,
 3    home, house, apartment, building, garage, site, structure, or
 4    facility and any right title, or interest in the whole of any
 5    lot or tract of land and any appurtenances or improvements on
 6    the land. Real property includes, but is not limited to,  any
 7    leasehold  or possessory interest or beneficial interest in a
 8    land trust.

 9        (720 ILCS 5/37.5-20 new)
10        Sec. 37.5-20.  Procedure.  Proceedings  instituted  under
11    this  Article shall be subject to and conducted in accordance
12    with the procedures set forth in this Section.
13        (a)  Notice to owner or interest holder. Whenever  notice
14    of pending forfeiture or service of a lis pendens is required
15    under  the  provisions of this Article, the notice or service
16    shall be given as follows:
17             (1)  If the owner's or interest  holder's  name  and
18        current  address  are  known,  then  by  either  personal
19        service  or  mailing  a  copy  of the notice by certified
20        mail, return receipt  requested,  to  that  address.  For
21        purposes  of  notice  under  this Section if a person has
22        been  arrested  for  the  conduct  giving  rise  to   the
23        forfeiture,  then  the  address provided to the arresting
24        agency at the time of arrest shall be deemed to  be  that
25        person's known address. Provided, however, if an owner or
26        interest  holder's address changes prior to the effective
27        date of the notice of pending forfeitures, the  owner  or
28        interest  holder shall promptly notify the seizing agency
29        of the change in address or, if  the  owner  or  interest
30        holder's address changes subsequent to the effective date
31        of  the  notice  of  pending  forfeitures,  the  owner or
32        interest  holder  shall  promptly  notify   the   State's
33        Attorney or Attorney General of the change in address; or
 
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 1             (2)  If  the owner's or interest holder's address is
 2        not known, and is not on record as provided in  paragraph
 3        (1),  then  by  publication  for  3 successive weeks in a
 4        newspaper of general circulation in the county  in  which
 5        the seizure occurred; or
 6             (3)  Notice  served  under this Article is effective
 7        upon personal service, the last date of  publication,  or
 8        the mailing of written notice, whichever is earlier.
 9        (b)  Probable  cause hearing. In an action brought by the
10    People of the State of Illinois under this Section, in  which
11    a restraining order, injunction, prohibition, lis pendens, or
12    other  action  in  connection  with  any property or interest
13    subject to forfeiture  under  this  Article  is  sought,  the
14    circuit  court presiding over the trial of the person charged
15    with a felony violation of Section 4.01 of  the  Humane  Care
16    for  Animals  Act  or  a felony offense under Section 26-5 of
17    this Code shall first determine  whether  there  is  probable
18    cause  to  believe that the person so charged has committed a
19    felony offense under Section 4.01  of  the  Humane  Care  for
20    Animals  Act  or  a felony offense under Section 26-5 of this
21    Code and whether the property  or  interest,  is  subject  to
22    forfeiture  under  this  Article.  To make that determination
23    before entering an order in connection with that property  or
24    interest,  the  court shall conduct a hearing without a jury,
25    at which  the  People  must  establish  that  there  is:  (i)
26    probable  cause  that  the  person charged committed a felony
27    offense under Section 4.01 of the Humane Care for Animals Act
28    or a felony offense under Section 26-5 of this Code and  (ii)
29    probable  cause  that the property or interest may be subject
30    to  forfeiture  under  this  Article.  The  hearing  may   be
31    conducted  simultaneously  with a preliminary hearing, if the
32    prosecution is commenced by information or complaint,  or  by
33    motion  of  the  People  at any stage in the proceedings. The
34    court may accept, at a preliminary hearing, (i) the filing of
 
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 1    an information charging that the defendant committed a felony
 2    offense under Section 4.01 of the Humane Care for Animals Act
 3    or a felony offense under Section 26-5 of this Code  or  (ii)
 4    the return of an indictment by a grand jury charging that the
 5    defendant  committed  a  felony offense under Section 4.01 of
 6    the Humane Care for Animals Act or  a  felony  offense  under
 7    Section  26-5 of this Code as sufficient evidence of probable
 8    cause that the person committed the offense.
 9             (1)  Upon making a finding of  probable  cause,  the
10        circuit   court   shall   enter   a   restraining  order,
11        injunction, lis pendens, or  prohibition  or  shall  take
12        other  action  in  connection  with the property or other
13        interest subject to forfeiture under this Article  as  is
14        necessary to insure that the property is not removed from
15        the  jurisdiction  of the court, concealed, destroyed, or
16        otherwise disposed of by the owner of  that  property  or
17        interest  before a forfeiture hearing under this Article.
18        The State's Attorney shall file a certified copy  of  the
19        restraining  order, injunction, or other prohibition with
20        the recorder or registrar of  title  of  each  county  in
21        which   the  property  may  be  located.  An  injunction,
22        restraining order, or other prohibition issued under this
23        Section does  not  affect  the  rights  of  any  bonafide
24        purchaser,  mortgagee,  judgment  creditor, or other lien
25        holder that arose before the date the certified  copy  is
26        filed.
27             (2)  The court may at any time, on verified petition
28        by  the defendant, conduct a hearing to determine whether
29        all or any portion of the property or interest, which the
30        court previously determined to be subject  to  forfeiture
31        or  subject  to  any  restraining  order, injunction, lis
32        pendens,  prohibition,  or  other   action,   should   be
33        released.  The  court  may  in its discretion release the
34        property to the defendant for good cause shown.
 
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 1        (720 ILCS 5/37.5-25 new)
 2        Sec. 37.5-25.  Forfeiture hearing. If  real  property  is
 3    subject  to  seizure for felony violations under Section 4.01
 4    of the Humane Care for Animals Act or felony violations under
 5    Section 26-5 of  this  Code,  upon  conviction,  the  State's
 6    Attorney  or  Attorney  General  may  commence  an  action by
 7    petition in the sentencing court anytime following sentencing
 8    of the  defendant.  The  sentencing  court  shall  conduct  a
 9    hearing   to  determine  whether  any  property  or  property
10    interest of the defendant, profits, or proceeds is subject to
11    forfeiture under this Article. At the forfeiture hearing  the
12    People have the burden of establishing, by a preponderance of
13    the  evidence,  that  the  property  or  property interest is
14    subject to forfeiture.
15             (1)  All  property  declared  forfeited  under  this
16        Article vests in this State on the date of the commission
17        of the conduct giving rise to  forfeiture  together  with
18        the  proceeds  of  the property after that time. Any such
19        property or  proceeds  subsequently  transferred  to  any
20        person  remain subject to forfeiture and thereafter shall
21        be ordered forfeited unless  the  transferee  claims  and
22        establishes  in  a  hearing  under the provisions of this
23        Article that the transferee's interest is exempt.
24             (2)  If the State does not show by  a  preponderance
25        of   the  evidence  or  a  claimant  has  established  by
26        preponderance  of  evidence  that  the  claimant  has  an
27        interest that is exempt under  this  Article,  the  court
28        shall  order  the  interest  in  the property returned or
29        conveyed to  the  claimant  and  shall  order  all  other
30        property  forfeited  to the State. If the State does show
31        by a preponderance of  the  evidence  that  the  property
32        interest  is subject to forfeiture, and the claimant does
33        not establish by a preponderance  of  evidence  that  the
34        claimant  has  an  interest  that  is  exempt  under this
 
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 1        Article,  the  court  shall  order  all   real   property
 2        forfeited to the State.
 3             (3)  A   defendant   convicted   in   any   criminal
 4        proceeding  is precluded from later denying the essential
 5        allegations  of  the  criminal  offense  of   which   the
 6        defendant  was  convicted  in  any  proceeding under this
 7        Article regardless of the pendency of an appeal from that
 8        conviction. However,  evidence  of  the  pendency  of  an
 9        appeal is admissible.

10        (720 ILCS 5/37.5-30 new)
11        Sec. 37.5-30.  Exemptions from forfeiture.
12        (a)  A  property interest is exempt from forfeiture under
13    this Article if its owner or interest holder establishes by a
14    preponderance of evidence that the owner or interest holder:
15             (1)  in the case of real  property  is  not  legally
16        accountable   for   the   conduct   giving  rise  to  the
17        forfeiture, or did not solicit, conspire, or  attempt  to
18        commit the conduct giving rise to the forfeiture; and
19             (2)  had  not  acquired and did not stand to acquire
20        proceeds from the conduct giving rise to  its  forfeiture
21        other  than  as  an  interest  holder  in  an arms length
22        commercial transaction; and
23             (3)  does not hold the property for the  benefit  of
24        or as a nominee for any person whose conduct gave rise to
25        its  forfeiture,  and,  if  the  owner or interest holder
26        acquired the interest through any such person, the  owner
27        or  interest  holder acquired it as a bona fide purchaser
28        for value without knowingly taking part  in  the  conduct
29        giving rise to the forfeiture; and
30             (4)  that  the owner or interest holder acquired the
31        interest:
32                  (i)  before the  commencement  of  the  conduct
33             giving  rise  to its forfeiture and the person whose
 
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 1             conduct gave rise to its forfeiture did not have the
 2             authority to convey the  interest  to  a  bona  fide
 3             purchaser for value at the time of the conduct; or
 4                  (ii)  after  the  commencement  of  the conduct
 5             giving rise to its  forfeiture,  and  the  owner  or
 6             interest   holder   acquired   the   interest  as  a
 7             mortgagee, secured  creditor,  lienholder,  or  bona
 8             fide  purchaser  for  value without knowledge of the
 9             conduct which gave rise to the forfeiture; and
10                  (iii)  in the case of real estate,  before  the
11             filing  in  the office of the recorder of the county
12             in which the real estate is located of a notice of a
13             lis pendens notice.
14             (5)(A)  With  respect  to  a  property  interest  in
15        existence at the time the illegal conduct giving rise  to
16        the forfeiture took place,
17                  (i)  did not know of the conduct giving rise to
18             forfeiture; or
19                  (ii) upon learning of the conduct  giving  rise
20             to  the forfeiture, did all that reasonably could be
21             expected under the circumstances to  terminate  such
22             use of the property.
23                  (B)(i)  For the purposes of this paragraph (5),
24             ways in which a person may show that he or  she  did
25             all  that  reasonably  could be expected may include
26             demonstrating  that  he  or  she,  to   the   extent
27             permitted by law:
28                       (I)  gave  timely notice to an appropriate
29                  law enforcement agency of information that  led
30                  the person to know the conduct giving rise to a
31                  forfeiture would occur or has occurred; and
32                       (II) in a timely fashion revoked or made a
33                  good  faith  attempt   to revoke permission for
34                  those engaging  in  such  conduct  to  use  the
 
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 1                  property   or   took   reasonable   actions  in
 2                  consultation with a law enforcement  agency  to
 3                  discourage  or  prevent  the illegal use of the
 4                  property.
 5                  (ii)  A  person  is  not   required   by   this
 6             subparagraph   to   take   steps   that  the  person
 7             reasonably believes would be likely to  subject  any
 8             person  (other  than  the  person whose conduct gave
 9             rise to the forfeiture) to physical danger.
10        (b)  If the court determines,  in  accordance  with  this
11    Section,  that  an  innocent  owner has a partial interest in
12    property otherwise subject to forfeiture, or a joint  tenancy
13    or  tenancy  by  the entirety in that property, the court may
14    enter an appropriate order:
15             (1) severing the property;
16             (2) transferring the property to the  State  with  a
17        provision that the State compensate the innocent owner to
18        the  extent of his or her ownership interest once a final
19        order of forfeiture has been entered and the property has
20        been reduced to liquid assets; or
21             (3) permitting the  innocent  owner  to  retain  the
22        property  subject  to a lien in favor of the State to the
23        extent of the forfeitable interest in the property.
24        (c)  In this Section, the term "owner":
25             (1)  means a person with an  ownership  interest  in
26        the specific property sought to be forfeited, including a
27        leasehold, lien, mortgage, recorded security interest, or
28        valid assignment of an ownership interest; and
29             (2)  does not include:
30                  (i)  a  person  with  only  a general unsecured
31             interest in,  or  claim  against,  the  property  or
32             estate of another;
33                  (ii)  a  bailee unless the bailor is identified
34             and the bailee shows a colorable legitimate interest
 
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 1             in the property seized; or
 2                  (iii)  a nominee who exercises no  dominion  or
 3             control over the property.

 4        (720 ILCS 5/37.5-35 new)
 5        Sec.   37.5-35.  Settlement  of  claims.  Notwithstanding
 6    other provisions of this Article, the State's Attorney and  a
 7    claimant  of  seized  property  may enter into an agreed upon
 8    settlement concerning the property subject to  forfeiture  in
 9    such  an amount and upon such terms as are set out in writing
10    in a settlement agreement.

11        (720 ILCS 5/37.5-40 new)
12        Sec. 37.5-40.  Judicial  review.  If  property  has  been
13    declared  forfeited under this Article, any person who has an
14    interest in the property declared forfeited  may,  within  30
15    days  of  the effective date of the notice of the declaration
16    of forfeiture, file a claim and cost bond and  apply  to  the
17    court  for  reconsideration based upon his or her interest in
18    the property.

19        (720 ILCS 5/37.5-45 new)
20        Sec. 37.5-45.  Disposal of property. Real property  taken
21    or  detained  under  this Section is not subject to replevin,
22    but is deemed to be in the custody of the Director  of  State
23    Police subject only to the order and judgments of the circuit
24    court having jurisdiction over the forfeiture proceedings and
25    the  decisions  of  the  State's Attorney or Attorney General
26    under this Article.
27             (1)  When property is forfeited under this  Article,
28        the Director of State Police shall sell all such property
29        and  shall  distribute the proceeds of the sale, together
30        with any moneys forfeited or seized  in  accordance  with
31        paragraph (2).
 
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 1             (2)  All  monies  and the sale proceeds of all other
 2        property forfeited and seized under this Article shall be
 3        distributed as follows:
 4                  (A)  65% shall be  distributed  to  the  local,
 5             municipal,  county,  or State law enforcement agency
 6             or agencies that conducted or  participated  in  the
 7             investigation   resulting  in  the  forfeiture.  The
 8             distributions shall bear a  reasonable  relationship
 9             to  the  degree  of  direct participation of the law
10             enforcement agency in the effort  resulting  in  the
11             forfeiture,  taking  into account the total value of
12             the property forfeited and the total law enforcement
13             effort with respect to the violation of the law upon
14             which the forfeiture is based.
15                  (B)  12.5% shall be distributed to  the  Office
16             of  the  State's Attorney of the county in which the
17             prosecution  resulting   in   the   forfeiture   was
18             instituted  for  use  in  the  enforcement  of laws,
19             including animal fighting.
20                  (C)  12.5% shall be distributed to the Illinois
21             Department  of  Agriculture  for  use  of   expenses
22             incurred  in  the  investigation,  prosecution,  and
23             appeal  of cases arising under laws governing animal
24             fighting.
25                  (D)  10% shall be retained by the Department of
26             State   Police   for   expenses   related   to   the
27             administration and  sale  of  seized  and  forfeited
28             property.

29        Section  99.  Effective  date. This Act takes effect upon
30    becoming law.