093_SB0211enr

 
SB211 Enrolled                       LRB093 03803 RLC 03838 b

 1        AN ACT in relation to criminal law.

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

 4        Section  5.   The  Criminal  Code  of  1961 is amended by
 5    adding Section 17-1b as follows:

 6        (720 ILCS 5/17-1b new)
 7        Sec.  17-lb.  State's  Attorney's  bad  check   diversion
 8    program.
 9        (a)  In this Section:
10        "Offender"  means  a  person  charged  with,  or for whom
11    probable cause exists to charge the  person  with,  deceptive
12    practices.
13        "Pretrial  diversion"  means the decision of a prosecutor
14    to refer an offender to a diversion program on condition that
15    the criminal charges against the offender will  be  dismissed
16    after  a  specified  period  of time, or the case will not be
17    charged, if the offender successfully completes the program.
18        "Restitution" means all amounts payable to  a  victim  of
19    deceptive  practices  under  the  bad check diversion program
20    created under this Section, including the amount of the check
21    and any transaction fees payable to a victim as set forth  in
22    subsection (g) but does not include amounts recoverable under
23    Section  3-806  of  the  Uniform  Commercial Code and Section
24    17-1a of this Code.

25        (b)  A State's Attorney may  create  within  his  or  her
26    office  a bad check diversion program for offenders who agree
27    to  voluntarily  participate  in  the  program   instead   of
28    undergoing  prosecution.  The program may be conducted by the
29    State's Attorney or by a private entity under  contract  with
30    the  State's Attorney. If the State's Attorney contracts with
31    a private entity to perform any  services  in  operating  the
 
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 1    program,  the  entity  shall  operate  under the supervision,
 2    direction, and control of the State's Attorney.  Any  private
 3    entity  providing  services  under  this  Section  is  not  a
 4    "collection  agency"  as  that  term  is  defined  under  the
 5    Collection Agency Act.
 6        (c)  If  an offender is referred to the State's Attorney,
 7    the State's Attorney may determine whether  the  offender  is
 8    appropriate  for  acceptance  in  the  program.  The  State's
 9    Attorney   may   consider,   but  shall  not  be  limited  to
10    consideration of, the following factors:
11             (1)  the amount of  the  check  that  was  drawn  or
12        passed;
13             (2)  prior referrals of the offender to the program;
14             (3)  whether  other  charges  of deceptive practices
15        are pending against the offender;
16             (4)  the evidence presented to the State's  Attorney
17        regarding the facts and circumstances of the incident;
18             (5)  the offender's criminal history; and
19             (6)  the  reason  the  check  was  dishonored by the
20        financial institution.
21        (d)  The bad  check  diversion  program  may  require  an
22    offender to do one or more of the following:
23             (i)  pay  for,  at  his  or  her  own  expense,  and
24        successfully  complete  an  educational class held by the
25        State's Attorney or a private entity under contract  with
26        the State's Attorney;
27             (ii)  make full restitution for the offense;
28             (iii)  pay  a  per-check  administrative  fee as set
29        forth in this Section.
30        (e)  If an offender  is  diverted  to  the  program,  the
31    State's  Attorney shall agree in writing not to prosecute the
32    offender upon the offender's  successful  completion  of  the
33    program  conditions.  The  State's  Attorney's  agreement  to
34    divert  the offender shall specify the offenses that will not
 
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 1    be prosecuted by  identifying  the  checks  involved  in  the
 2    transactions.
 3        (f)  The   State's  Attorney,  or  private  entity  under
 4    contract with the State's Attorney, may collect a fee from an
 5    offender  diverted  to  the  State's  Attorney's  bad   check
 6    diversion  program.  This  fee  may  be  deposited  in a bank
 7    account maintained by the State's Attorney for the purpose of
 8    depositing fees and paying the expenses of the  program.  The
 9    State's Attorney may require that the fee be paid directly to
10    a  private  entity  that  administers  the  program  under  a
11    contract  with  the  State's  Attorney.  The  amount  of  the
12    administrative  fees  collected by the State's Attorney under
13    the program may not exceed $35 per check.  The  county  board
14    may, however, by ordinance, increase the fees allowed by this
15    Section  if  the  increase is justified by an acceptable cost
16    study showing that the fees allowed by this Section  are  not
17    sufficient to cover the cost of providing the service.
18             (g) (1)  The  private  entity  shall  be required to
19        maintain  adequate   general   liability   insurance   of
20        $1,000,000  per  occurrence  as well as adequate coverage
21        for potential loss resulting  from  employee  dishonesty.
22        The State's Attorney may require a surety bond payable to
23        the State's Attorney if in the State's Attorney's opinion
24        it   is   determined  that  the  private  entity  is  not
25        adequately insured or funded.
26             (2)  (A) Each private entity  that  has  a  contract
27        with   the  State's  Attorney  to  conduct  a  bad  check
28        diversion program shall at all times maintain a  separate
29        bank  account  in  which  all  moneys  received  from the
30        offenders  participating  in   the   program   shall   be
31        deposited, referred to as a  "Trust Account", except that
32        negotiable instruments received may be forwarded directly
33        to  a  victim  of the deceptive practice committed by the
34        offender if that procedure is provided for by  a  writing
 
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 1        executed  by  the  victim.  Moneys  received  shall be so
 2        deposited within 5 business days  after  posting  to  the
 3        private   entity's  books  of  account.  There  shall  be
 4        sufficient funds in the trust account at all times to pay
 5        the victims the amount due them.
 6                  (B) The trust account shall be established in a
 7             bank,  savings  and  loan  association,   or   other
 8             recognized  depository  which  is federally or State
 9             insured or otherwise secured as defined by rule.  If
10             the  account is interest bearing, the private entity
11             shall pay to the victim interest earned on funds  on
12             deposit after the 60th day.
13                  (C)  Each private entity shall keep on file the
14             name of the bank, savings and loan  association,  or
15             other  recognized  depository  in  which  each trust
16             account  is  maintained,  the  name  of  each  trust
17             account, and the names of the persons authorized  to
18             withdraw   funds  from  each  account.  The  private
19             entity, within 30 days of the time of  a  change  of
20             depository  or person authorized to make withdrawal,
21             shall update its files to reflect  that  change.  An
22             examination  and  audit  of a private entity's trust
23             accounts may be  made by the State's Attorney as the
24             State's Attorney deems appropriate. A trust  account
25             financial  report  shall  be  submitted  annually on
26             forms acceptable to the State's Attorney.
27             (3) The  State's  Attorney  may  cancel  a  contract
28        entered into with a private entity under this Section for
29        any one or any combination of the following causes:
30                  (A)  Conviction  of  the  private entity or the
31             principals of the private entity of any crime  under
32             the laws of any U.S. jurisdiction which is a felony,
33             a  misdemeanor  an  essential  element  of  which is
34             dishonesty, or of any crime which  directly  relates
 
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 1             to the practice of the profession.
 2                  (B)  A  determination  that  the private entity
 3             has engaged in conduct prohibited in item (4).
 4             (4)  The State's Attorney may determine whether  the
 5        private  entity  has  engaged in the following prohibited
 6        conduct:
 7                  (A)  Using  or  threatening  to  use  force  or
 8             violence to cause physical harm to an offender,  his
 9             or her family, or his or her property.
10                  (B)  Threatening  the  seizure,  attachment, or
11             sale of an offender's property where such action can
12             only  be  taken  pursuant  to  court  order  without
13             disclosing  that   prior   court   proceedings   are
14             required.
15                  (C)  Disclosing   or   threatening  to disclose
16             information  adversely   affecting   an   offender's
17             reputation  for  creditworthiness with knowledge the
18             information is false.
19                  (D)  Initiating  or  threatening  to   initiate
20             communication  with  an  offender's  employer unless
21             there has been a  default  of  the  payment  of  the
22             obligation  for at least 30 days and at least 5 days
23             prior written notice, to the last known  address  of
24             the  offender,  of the intention to communicate with
25             the employer has been given to the employee,  except
26             as expressly permitted by law or court order.
27                  (E)  Communicating  with  the  offender  or any
28             member of the offender's family at such  a  time  of
29             day   or   night  and  with  such  frequency  as  to
30             constitute harassment of the offender or any  member
31             of  the  offender's  family.   For  purposes of this
32             clause (E) the following  conduct  shall  constitute
33             harassment:
34                  (i)  Communicating  with  the  offender  or any
 
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 1             member of his or her family at any unusual  time  or
 2             place  or  a  time or place known or which should be
 3             known to be inconvenient to the  offender.   In  the
 4             absence   of   knowledge  of  circumstances  to  the
 5             contrary, a private entity  shall  assume  that  the
 6             convenient time for communicating with a consumer is
 7             after 8 o'clock a.m. and before 9 o'clock p.m. local
 8             time at the offender's residence.
 9                  (ii)  The  threat of publication or publication
10             of a list of offenders who allegedly refuse  to  pay
11             restitution, except by the State's Attorney.
12                  (iii)    The   threat   of   advertisement   or
13             advertisement for sale of any restitution to  coerce
14             payment of the restitution.
15                  (iv)  Causing  a  telephone to ring or engaging
16             any person in telephone conversation  repeatedly  or
17             continuously  with intent to annoy, abuse, or harass
18             any person at the called number.
19                  (v)  Using   profane,   obscene   or    abusive
20             language   in communicating with an offender, his or
21             her family, or others.
22                  (vi) Disclosing  or  threatening   to  disclose
23             information  relating  to  a  offender's case to any
24             other person except the victim and  appropriate  law
25             enforcement personnel.
26                  (vii)  Disclosing  or threatening  to  disclose
27             information  concerning  the  alleged  criminal  act
28             which the private  entity  knows  to  be  reasonably
29             disputed by the offender without disclosing the fact
30             that the offender disputes the accusation.
31                  (viii)  Engaging   in  any  conduct  which  the
32             State's Attorney finds was intended to cause and did
33             cause mental or physical illness to the offender  or
34             his or her family.
 
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 1                  (ix)  Attempting  or  threatening  to enforce a
 2             right or remedy with knowledge  or  reason  to  know
 3             that the right or remedy does not exist.
 4                  (x)  Except   as   authorized  by  the  State's
 5             Attorney, using  any  form  of  communication  which
 6             simulates  legal  or judicial process or which gives
 7             the  appearance  of  being  authorized,  issued   or
 8             approved  by a governmental agency or official or by
 9             an attorney at law when it is not.
10                  (xi)  Using  any  badge,  uniform,   or   other
11             indicia  of  any  governmental  agency  or official,
12             except as  authorized  by  law  or  by  the  State's
13             Attorney.
14                  (xii)  Except  as  authorized  by  the  State's
15             Attorney,  conducting  business under any name or in
16             any  manner  which  suggests  or  implies  that  the
17             private entity is bonded if such private entity   is
18             or  is  a  branch  of  or  is  affiliated  with  any
19             governmental  agency or court if such private entity
20             is not.
21                  (xiii)  Misrepresenting  the  amount   of   the
22             restitution alleged to be owed.
23                  (xiv)  Except  as  authorized  by  the  State's
24             Attorney,  representing that an existing restitution
25             amount  may  be  increased  by   the   addition   of
26             attorney's  fees,  investigation  fees, or any other
27             fees or charges when those fees or charges  may  not
28             legally be added to the existing restitution.
29                  (xv)  Except   as  authorized  by  the  State's
30             Attorney, representing that the private entity is an
31             attorney at law or an agent for an attorney  if  the
32             entity is not.
33                  (xvi)  Collecting  or attempting to collect any
34             interest or other charge or fee  in  excess  of  the
 
SB211 Enrolled              -8-      LRB093 03803 RLC 03838 b
 1             actual  restitution  or claim unless the interest or
 2             other charge or fee is expressly authorized  by  the
 3             State's   Attorney,   who   shall   determine   what
 4             constitutes a reasonable collection fee.
 5                  (xvii)    Communicating   or   threatening   to
 6             communicate with an offender when the private entity
 7             is informed in  writing  by  an  attorney  that  the
 8             attorney  represents  the  offender  concerning  the
 9             claim,  unless  authorized  by  the attorney. If the
10             attorney fails to respond within a reasonable period
11             of time, the private entity may communicate with the
12             offender. The private entity  may  communicate  with
13             the offender when the attorney gives his consent.
14                  (xviii)  Engaging  in  dishonorable, unethical,
15             or unprofessional conduct of a character  likely  to
16             deceive, defraud, or harm the public.
17             (5)  The  State's  Attorney shall audit the accounts
18        of the  bad  check  diversion  program  after  notice  in
19        writing to the private entity.
20             (6)  Any  information  obtained  by a private entity
21        that has a contract with the State's Attorney to  conduct
22        a bad check diversion program is confidential information
23        between  the  State's Attorney and the private entity and
24        may not be sold or used for any other purpose but may  be
25        shared  with other authorized law enforcement agencies as
26        determined by the State's Attorney.

27        (h)  The  State's  Attorney,  or  private  entity   under
28    contract   with  the  State's  Attorney,  shall  recover,  in
29    addition to the face amount of the dishonored check or draft,
30    a transaction fee to defray the costs and  expenses  incurred
31    by  a victim who received a dishonored check that was made or
32    delivered by the offender. The face amount of the  dishonored
33    check  or  draft and the transaction fee shall be paid by the
34    State's Attorney or private entity under  contract  with  the
 
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 1    State's  Attorney  to  the  victim  as  restitution  for  the
 2    offense.  The  amount of the transaction fee must not exceed:
 3    $25 if the face amount of the check or draft does not  exceed
 4    $100; $30 if the face amount of the check or draft is greater
 5    than $100 but does not exceed $250; $35 if the face amount of
 6    the  check  or draft is greater than $250 but does not exceed
 7    $500; $40 if the face amount of the check or draft is greater
 8    than $500 but does not exceed $1,000; and  $50  if  the  face
 9    amount of the check or draft is greater than $1,000.

10        (i)  The  offender,  if  aggrieved  by  an  action of the
11    private entity contracted to operate a  bad  check  diversion
12    program,  may  submit a grievance to the State's Attorney who
13    may then resolve the grievance. The private entity must  give
14    notice  to  the  offender  that  the  grievance  procedure is
15    available. The grievance procedure shall  be  established  by
16    the State's Attorney.

17        Section  99.  Effective  date. This Act takes effect upon
18    becoming law.