Full Text of SB0417 94th General Assembly
SB0417enr 94TH GENERAL ASSEMBLY
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| AN ACT concerning finance.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Tobacco Products Manufacturers' Escrow | 5 |
| Enforcement Act of 2003 is amended by changing Sections 15, 20, | 6 |
| 25, 30, and 35 as follows:
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| (30 ILCS 167/15)
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| Sec. 15. Certifications; directory; tax stamps.
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| (a) Every tobacco product manufacturer whose cigarettes | 10 |
| are sold in this
State whether
directly or through a | 11 |
| distributor, retailer, or similar intermediary or
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| intermediaries shall execute and
deliver on a form prescribed | 13 |
| by the Attorney General a certification to the
Attorney | 14 |
| General, no
later than the thirtieth day of April each year, | 15 |
| certifying under penalty of
perjury that, as of the date
of the | 16 |
| certification, the tobacco product manufacturer either: (i) is | 17 |
| a
participating manufacturer and has generally performed its | 18 |
| financial
obligations under the Master Settlement Agreement; | 19 |
| or
(ii) is in full compliance with the Escrow Act, including | 20 |
| all quarterly
installment
payments.
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| (1) A participating manufacturer shall include in its | 22 |
| certification a list
of its brand
families. The | 23 |
| participating manufacturer shall update the list 30 days | 24 |
| prior to
any addition to or
modification of its brand | 25 |
| families by executing and delivering a supplemental
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| certification to the
Attorney General.
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| (2) A non-participating manufacturer shall include in | 28 |
| its certification a
complete
list of all of its brand | 29 |
| families: (i) separately listing brand families of
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| cigarettes and the number of
units sold for each brand | 31 |
| family that were sold in the State during the
preceding | 32 |
| calendar year; (ii)
listing all of its brand families that |
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| have been sold in the State at any time
during the current
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| calendar year; (iii) indicating by an asterisk, any brand | 3 |
| family sold in the
State during the preceding
calendar year | 4 |
| that is no longer being sold in the State as of the date of | 5 |
| the
certification; and (iv)
identifying by name and address | 6 |
| any other manufacturer of the brand families in
the | 7 |
| preceding
calendar year. The non-participating | 8 |
| manufacturer shall update the list 30 days
prior to any | 9 |
| addition
to or modification of its brand families by | 10 |
| executing and delivering a
supplemental certification to
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| the Attorney General.
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| (3) In the case of a non-participating manufacturer, | 13 |
| the certification
shall further certify:
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| (A) that the non-participating manufacturer is | 15 |
| registered to do business
in
this State or has | 16 |
| appointed a resident agent for service of process and
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| provided notice thereof as
required by Section 20
item | 18 |
| 4 of subsection (a) of this Section ;
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| (B) that the non-participating manufacturer has | 20 |
| (i) established and
continues to maintain a qualified | 21 |
| escrow fund as that term is defined in
Section 10 of | 22 |
| the Escrow
Act, and (ii) executed a qualified escrow | 23 |
| agreement that has been reviewed and
approved by the
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| Attorney General and that governs the qualified escrow | 25 |
| fund;
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| (C) that the non-participating manufacturer is in | 27 |
| full compliance with
the Escrow Act and this Act, and | 28 |
| any regulations promulgated pursuant thereto;
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| (D) the name, address and telephone number of the | 30 |
| financial institution
where the non-participating | 31 |
| manufacturer has established the qualified escrow
fund | 32 |
| required
pursuant to Section 15 of the Escrow Act and | 33 |
| all regulations promulgated
thereto;
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| (E) the account number of the qualified escrow fund | 35 |
| and sub-account
number for this State;
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| (F) the amount the non-participating manufacturer |
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| placed in the fund
for cigarettes sold in the State | 2 |
| during the preceding calendar year, including
the | 3 |
| dates and amount
of each deposit, and such evidence or | 4 |
| verification as may be deemed necessary
by the Attorney | 5 |
| General to confirm the foregoing; and
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| (G) the amounts of and dates of any withdrawal or | 7 |
| transfer of funds the
non-participating manufacturer | 8 |
| made at any time from the fund or from any other
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| qualified escrow
fund into which it ever made escrow | 10 |
| payments pursuant to Section 15 of the
Escrow Act and | 11 |
| all regulations promulgated thereto.
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| (4) A tobacco product manufacturer may not include a | 13 |
| brand family in its
certification unless: (i) in the case | 14 |
| of a participating manufacturer, the
participating | 15 |
| manufacturer
affirms that the brand family is to be deemed | 16 |
| to be its cigarettes for purposes
of calculating its
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| payments under the master settlement agreement for the | 18 |
| relevant year, in the
volume and shares
determined pursuant | 19 |
| to the master settlement agreement; and (ii) in the case of
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| a non-participating
manufacturer, the non-participating | 21 |
| manufacturer affirms that the brand family
is to be deemed | 22 |
| to
be its cigarettes for purposes of Section 15 of the | 23 |
| Escrow Act.
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| Nothing in this Section shall be construed as limiting | 25 |
| or otherwise
affecting
the State's right
to maintain that a | 26 |
| brand family constitutes cigarettes of a different tobacco
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| product manufacturer
for purposes of calculating payments | 28 |
| under the master settlement agreement or
for purposes of | 29 |
| Section 15 of the Escrow Act.
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| (5) The tobacco product manufacturers shall maintain | 31 |
| all invoices and
documentation of sales and other | 32 |
| information relied upon for certification for
a period of 5 | 33 |
| years,
unless otherwise required by law to maintain them | 34 |
| for a greater period of time.
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| (b) Not later than 6 months after the effective date of | 36 |
| this Act, the
Attorney General shall
develop and make available |
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| for public inspection, through publishing on its
website, a | 2 |
| directory
listing all tobacco product manufacturers that have | 3 |
| provided current and
accurate certifications
conforming to the | 4 |
| requirements of subsection (a) of Section 15 and all brand
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| families that are listed in the certifications, except for the | 6 |
| following:
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| (1) The Attorney General shall not include or retain in | 8 |
| the directory the
name or
brand families of any | 9 |
| non-participating manufacturer that fails to provide the
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| required certification
or whose certification the Attorney | 11 |
| General determines is not in compliance
with subsections | 12 |
| (a)(2)
or (a)(3) of Section 15, unless the Attorney General | 13 |
| has determined that the
violation has been
cured to the | 14 |
| satisfaction of the Attorney General.
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| (2) Neither a tobacco product manufacturer nor brand | 16 |
| family shall be
included or
retained in the directory if | 17 |
| the Attorney General concludes that: (i) in the
case of a | 18 |
| non-participating
manufacturer all escrow payments | 19 |
| required pursuant to Section 15 of the Escrow
Act for any | 20 |
| period
for any brand family, whether or not listed by the | 21 |
| non-participating
manufacturer, have not been
fully paid | 22 |
| into a qualified escrow fund governed by a qualified escrow
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| agreement that has been
approved by the Attorney General; | 24 |
| or (ii) all outstanding final judgments,
including | 25 |
| interest
thereon, for violations of Section 15 of the | 26 |
| Escrow Act have not been fully
satisfied for that brand | 27 |
| family and manufacturer.
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| (c) The Attorney General shall update the directory as | 29 |
| necessary in order
to correct
mistakes and to add or remove a | 30 |
| tobacco product manufacturer or brand families
to keep the | 31 |
| directory in conformity with the requirements of this Act.
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| (d) Every distributor shall provide and update as necessary | 33 |
| an electronic
mail
address to the Attorney General for the | 34 |
| purpose of receiving any notifications
as may be required by | 35 |
| this Act.
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| (e) It shall be unlawful for any person: (i) to affix a |
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| stamp to a package
or other container of
cigarettes of a | 2 |
| tobacco product manufacturer or brand family not included in
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| the directory; or (ii) to
sell, offer for sale, or possess for | 4 |
| sale in this State, or import for personal
consumption in this | 5 |
| State,
cigarettes of a tobacco product manufacturer or brand | 6 |
| family not included in
the directory.
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| (Source: P.A. 93-446, eff. 1-1-04; 93-930, eff. 1-1-05.)
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| (30 ILCS 167/20)
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| Sec. 20. Agent for service of process.
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| (a) Any non-resident or foreign non-participating | 11 |
| manufacturer that has not
registered to do
business in this | 12 |
| State as a foreign corporation or business entity shall, as a
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| condition precedent to
having its brand families listed or | 14 |
| retained in the directory, appoint and
continually engage | 15 |
| without
interruption the services of an agent in this State to | 16 |
| act as agent for the
service of process on whom
all process, | 17 |
| and any action or proceeding against it concerning or arising | 18 |
| out
of the enforcement of
this Act and the Escrow Act, may be | 19 |
| served in any manner authorized by law. The
service shall
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| constitute legal and valid service of process on the | 21 |
| non-participating
manufacturer. The non-participating | 22 |
| manufacturer shall provide the name,
address, phone number, and | 23 |
| proof of the
appointment and availability of the agent to and | 24 |
| to the satisfaction of the
Director and Attorney General.
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| (b) The non-participating manufacturer shall provide | 26 |
| notice to the
Director and
Attorney General 30 calendar days | 27 |
| prior to termination of the authority of an
agent and shall | 28 |
| further
provide proof to the satisfaction of the Attorney | 29 |
| General of the appointment of
a new agent no less
than 5 | 30 |
| calendar days prior to the termination of an existing agent | 31 |
| appointment.
In the event an agent
terminates an agency | 32 |
| appointment, the non-participating manufacturer shall
notify | 33 |
| the
Director and Attorney General of the termination within 5 | 34 |
| calendar days and
shall include
proof to the satisfaction of | 35 |
| the Attorney General of the appointment of a new
agent.
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| (c) Any non-participating manufacturer whose products are | 2 |
| sold in this
State, without
appointing or designating an agent | 3 |
| as herein required shall be deemed to have
appointed the
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| Secretary of State as the agent and may be proceeded against in | 5 |
| courts of this
State by service of
process upon the Secretary | 6 |
| of State; however, the appointment of the Secretary
of State as | 7 |
| an agent
shall not satisfy the condition precedent to having | 8 |
| its brand families listed
or retained in the directory.
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| (Source: P.A. 93-446, eff. 1-1-04.)
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| (30 ILCS 167/25)
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| Sec. 25. Reporting of information; escrow installments.
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| (a) Not later than 20 days after the end of each calendar | 13 |
| quarter, and more
frequently if so
directed by the Attorney | 14 |
| General, each distributor shall submit the information
as the | 15 |
| Attorney
General requires to facilitate compliance with this | 16 |
| Act, including, but not
limited to, a list by
brand family of | 17 |
| the total number of cigarettes or in the case of roll-your-own,
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| the equivalent stick
count for which the distributor affixed | 19 |
| stamps during the previous calendar
quarter or otherwise
paid | 20 |
| the tax due for these cigarettes. The distributor shall | 21 |
| maintain, and make
available to the
Attorney General, all | 22 |
| invoices and documentation of sales of all
non-participating | 23 |
| manufacturer
cigarettes and any other information relied upon | 24 |
| in reporting to the Attorney
General for a period of 5 years.
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| (b) The Attorney General
Director is authorized to disclose | 26 |
| to the Director
Attorney General any
information received
under | 27 |
| this Act and requested by the Attorney General for purposes of
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| determining compliance with
and enforcing the provisions of | 29 |
| this Act. The Director and Attorney General
shall share with | 30 |
| each
other the information received under this Act, and may | 31 |
| share the information
with other federal,
State, or local | 32 |
| agencies only for purposes of enforcement of this Act, the
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| Escrow Act, or corresponding laws of other states.
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| (c) The Attorney General may require at any time, from the | 35 |
| non-participating
manufacturer,
proof from the financial |
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| institution in which the manufacturer has established
a | 2 |
| qualified escrow
fund for the purpose of compliance with the | 3 |
| Escrow Act of the amount of money
in the fund being
held on | 4 |
| behalf of the State and the dates of deposits, and listing the | 5 |
| amounts
of all withdrawals from the fund and the dates thereof.
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| (d) In addition to the information required to be submitted | 7 |
| pursuant to this
Act, the
Attorney General may require a | 8 |
| distributor or tobacco product manufacturer to
submit any
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| additional information including, but not limited to, samples | 10 |
| of the packaging
or labeling of each
brand family, as is | 11 |
| necessary to enable the Attorney General to determine
whether a | 12 |
| tobacco
product manufacturer is in compliance with this Act.
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| (e) To promote compliance with the provisions of this Act, | 14 |
| the Attorney
General may
promulgate regulations requiring a | 15 |
| tobacco product manufacturer subject to the
requirements of
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| subsection (a)(2) of Section 15 to make the escrow deposits | 17 |
| required in
quarterly installments
during the year in which the | 18 |
| sales covered by the deposits are made. The
Attorney General | 19 |
| may
require production of information sufficient to enable the | 20 |
| Attorney General to
determine the adequacy of the amount of the | 21 |
| installment deposit.
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| (Source: P.A. 93-446, eff. 1-1-04.)
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| (30 ILCS 167/30)
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| Sec. 30. Penalties and other remedies.
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| (a) In addition to or in lieu of any other civil or | 26 |
| criminal remedy provided
by law, upon a
determination that a | 27 |
| distributor has violated subsection (e) of Section 15 or
any | 28 |
| regulation adopted
pursuant thereto, the Director may revoke or | 29 |
| suspend the license of any distributor
stamping agent in the
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| manner provided by Section 6 of the Cigarette Tax Act, Section | 31 |
| 6 of the
Cigarette Use Tax Act, or
Section 10-25 of the Tobacco | 32 |
| Products Tax Act of 1995, as appropriate. Each
stamp affixed | 33 |
| and
each offer to sell cigarettes in violation of subsection | 34 |
| (e) of Section 15
shall constitute a separate
violation. For | 35 |
| each violation, the Director may also impose a civil
penalty in |
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| an amount not
to exceed the greater of 500% of the retail value | 2 |
| of the cigarettes sold or
$5,000 upon a
determination of | 3 |
| violation of subsection (e) of Section 15 or any regulations
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| adopted pursuant thereto.
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| (b) Any cigarettes that have been sold, offered for sale, | 6 |
| or possessed for
sale in this State,
or imported for personal | 7 |
| consumption in this State in violation of subsection (e) of | 8 |
| Section 15 shall
be subject to seizure and forfeiture as | 9 |
| provided in Sections 18, 18a, and 20 of
the Cigarette Tax Act
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| and Sections 24, 25, 25a and 26 of the Cigarette Use Tax Act, | 11 |
| and all
cigarettes so seized and forfeited shall be destroyed | 12 |
| and not resold.
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| (c) The Attorney General may seek an injunction to restrain | 14 |
| a threatened or
actual violation
of subsection (e) of Section | 15 |
| 15, subsection (a) of Section 25, or subsection
(d) of Section | 16 |
| 25 by a distributor
stamping agent and to compel the | 17 |
| distributor
stamping agent to comply with such
subsections. In | 18 |
| any action
brought pursuant to this Section, the State shall be | 19 |
| entitled to recover the
costs of investigation,
costs of the | 20 |
| action, and reasonable attorney fees.
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| (d) It shall be unlawful for a person to: (i) sell or | 22 |
| distribute cigarettes;
or (ii) acquire, hold,
own, possess, | 23 |
| transport, import, or cause to be imported cigarettes that the
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| person knows or should
know are intended for distribution or | 25 |
| sale in the State in violation of
subsection (e) of Section 15. | 26 |
| A
violation of this Section shall be a Class 2 felony.
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| (e) A person who violates subsection (e) of Section 15 | 28 |
| engages in an unfair
and deceptive
trade practice in violation | 29 |
| of the Uniform Deceptive Trade Practices Act.
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| (Source: P.A. 93-446, eff. 1-1-04; 93-930, eff. 1-1-05.)
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| (30 ILCS 167/35)
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| Sec. 35. Miscellaneous provisions.
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| (a) Every final administrative decision
A determination of | 34 |
| the Attorney General to not list or to remove from
the | 35 |
| directory a
brand family or tobacco product manufacturer shall |
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| be subject to judicial review only under and in accordance with | 2 |
| the Administrative Review Law. The provisions of the | 3 |
| Administrative Review Law, and the rules adopted pursuant | 4 |
| thereto, apply to and govern all proceedings for the judicial | 5 |
| review of final administrative decisions of the Attorney | 6 |
| General under this subsection. The term "administrative | 7 |
| decision" is defined as in Section 3-101 of the Code of Civil | 8 |
| Procedure
in the
manner prescribed
by rule .
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| (b) No person shall be issued a license or granted a | 10 |
| renewal of a license to
act as a
distributor unless the person | 11 |
| has certified in writing, under penalty of
perjury, that the | 12 |
| person will comply fully with this Act.
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| (c) The Attorney General may promulgate rules necessary to | 14 |
| effect the
purposes of this Act.
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| (d) In any action brought by the State to enforce this Act, | 16 |
| the State shall
be entitled to
recover the costs of | 17 |
| investigation, expert witness fees, costs of the action,
and | 18 |
| reasonable attorney fees.
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| (e) If a court determines that a person has violated this | 20 |
| Act, the court
shall order any
profits, gain, gross receipts, | 21 |
| or other benefit from the violation to be
disgorged and paid to | 22 |
| the General Revenue Fund.
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| (f) Unless otherwise expressly provided the remedies or | 24 |
| penalties provided
by this Act are
cumulative to each other and | 25 |
| to the remedies or penalties available under all
other laws of | 26 |
| this State.
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| (Source: P.A. 93-446, eff. 1-1-04.)
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| Section 99. Effective date. This Act takes effect upon | 29 |
| becoming law.
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