Full Text of SB1958 94th General Assembly
SB1958sam001 94TH GENERAL ASSEMBLY
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Sen. Jeffrey M. Schoenberg
Filed: 3/31/2005
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| AMENDMENT TO SENATE BILL 1958
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| AMENDMENT NO. ______. Amend Senate Bill 1958 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 1. Short title. This Act may be cited as the Tax | 5 |
| Refund Anticipation Loan Act. | 6 |
| Section 5. Scope. No person, including, but not limited to, | 7 |
| any officer, agent, employee, or representative, may | 8 |
| individually or in conjunction or cooperation with another | 9 |
| person (i) solicit the execution of, process, receive, or | 10 |
| accept an application or agreement for a refund anticipation | 11 |
| loan or refund anticipation check or (ii) in any other manner | 12 |
| facilitate the making of a refund anticipation loan or refund | 13 |
| anticipation check unless the person has complied with the | 14 |
| provisions of this Act. The provisions of this Act shall apply | 15 |
| to any person who seeks to evade its applicability by any | 16 |
| device, subterfuge, or pretense whatsoever. | 17 |
| Section 10. Definitions. The following definitions apply | 18 |
| in this Act: | 19 |
| "Applicant" means a person who applies for registration as | 20 |
| a facilitator of refund anticipation loans or refund | 21 |
| anticipation checks. | 22 |
| "Consumer" means any individual who, singly or jointly with | 23 |
| another individual, is solicited for, applies for, or receives |
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| the proceeds of a refund anticipation loan or refund | 2 |
| anticipation check. | 3 |
| "Creditor" means any person who makes a refund anticipation | 4 |
| loan or who takes an assignment of a refund anticipation loan. | 5 |
| "Department" means the Department of Financial and | 6 |
| Professional Regulation. | 7 |
| "Facilitator" means a person who individually or in | 8 |
| conjunction or cooperation with another person (i) solicits the | 9 |
| execution of, processes, receives, or accepts an application or | 10 |
| agreement for a refund anticipation loan or refund anticipation | 11 |
| check or (ii) in any other manner facilitates the making of a | 12 |
| refund anticipation loan or refund anticipation check. | 13 |
| "Person" means an individual, firm, partnership, | 14 |
| association, corporation, or another entity. | 15 |
| "Refund anticipation check" means a check or other payment | 16 |
| mechanism: | 17 |
| (1) representing the proceeds of a consumer's tax | 18 |
| refund; | 19 |
| (2) that was issued by a depository institution or | 20 |
| other person that received a direct deposit of the | 21 |
| consumer's tax refund or tax credits; and | 22 |
| (3) for which the consumer has paid a fee or other | 23 |
| consideration. | 24 |
| "Refund anticipation loan" means a loan that is secured by | 25 |
| or that the creditor arranges to be repaid directly or | 26 |
| indirectly from the proceeds of the consumer's income tax | 27 |
| refund or tax credits. "Refund anticipation loan" also includes | 28 |
| any sale, assignment, or purchase of a consumer's tax refund at | 29 |
| a discount or for a fee, whether or not the consumer is | 30 |
| required to repay the buyer or assignee if the Internal Revenue | 31 |
| Service denies or reduces the consumer's tax refund. | 32 |
| "Refund anticipation loan fee" means the total charges, | 33 |
| fees, or other consideration charged or imposed directly or | 34 |
| indirectly by the creditor or facilitator for the making of or |
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| in connection with a refund anticipation loan. "Refund | 2 |
| anticipation loan fee" includes any charges, fees, or other | 3 |
| consideration for a deposit account if the deposit account is | 4 |
| used for receipt of the consumer's tax refund to repay the | 5 |
| amount owed on the loan. "Refund anticipation loan fee" does | 6 |
| not include any charges, fees, or other consideration usually | 7 |
| charged or imposed by the facilitator in the ordinary course of | 8 |
| business, such as fees for tax return preparation and fees for | 9 |
| electronic filing of tax returns, if the same fees in the same | 10 |
| amount are charged to the facilitator's customers who do not | 11 |
| receive refund anticipation loans or refund anticipation | 12 |
| checks. | 13 |
| "Refund anticipation loan interest rate" means the | 14 |
| interest rate for a refund anticipation loan calculated as | 15 |
| follows: the total amount of refund anticipation loan fees | 16 |
| divided by the loan amount (minus any loan fees), then divided | 17 |
| by the number of days in the loan term, then multiplied by 365 | 18 |
| and expressed as a percentage. If a deposit account is | 19 |
| established or maintained in whole or in part for the purpose | 20 |
| of receiving the consumer's tax refund to repay the amount owed | 21 |
| on a refund anticipation loan: | 22 |
| (1) the maturity of the loan for the purpose of | 23 |
| determining the refund anticipation loan interest rate | 24 |
| shall be assumed to be the estimated date when the tax | 25 |
| refund will be deposited in the deposit account; and | 26 |
| (2) any fee charged to the consumer for the deposit | 27 |
| account shall be considered a loan fee and shall be | 28 |
| included in the calculation of the refund anticipation loan | 29 |
| interest rate. | 30 |
| If no deposit account is established or maintained for the | 31 |
| repayment of the loan, the maturity of the loan shall be | 32 |
| assumed to be the estimated date when the tax refund is | 33 |
| received by the creditor. | 34 |
| In no event shall the refund anticipation loan interest |
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| rate exceed 36% per annum. | 2 |
| "Registrant" means a person who is registered as a | 3 |
| facilitator of refund anticipation loans or refund | 4 |
| anticipation checks under this Act. | 5 |
| Section 15. Registration and bond requirement. | 6 |
| (a) No person may individually or in conjunction or | 7 |
| cooperation with another person solicit the execution of, | 8 |
| process, receive, or accept an application or agreement for a | 9 |
| refund anticipation loan or refund anticipation check without | 10 |
| first (i) being registered as a facilitator with the Department | 11 |
| and (ii) posting a bond in accordance with this Act. | 12 |
| (b) Each registrant must post a bond in the amount of | 13 |
| $100,000 per location, which must continue in effect for 5 | 14 |
| years after the registrant ceases operation in the State. The | 15 |
| bond shall be available to pay damages and penalties to | 16 |
| consumers harmed by any violation of this Act. | 17 |
| (c) This Section does not apply to any bank, savings and | 18 |
| loan association, credit union, or licensee under the Consumer | 19 |
| Installment Loan Act and operating under the laws of the United | 20 |
| States or of this State. | 21 |
| Section 20. Registration procedure; informal hearing. | 22 |
| (a) An application to become registered as a facilitator | 23 |
| shall be in writing, under oath, and in a form prescribed by | 24 |
| the Department. Each application for registration shall be | 25 |
| accompanied by a fee of $1,000 for each office at which the | 26 |
| applicant intends to facilitate refund anticipation loans or | 27 |
| refund anticipation checks. | 28 |
| Upon the filing of an application for registration, if the | 29 |
| Department finds that the responsibility and general fitness of | 30 |
| the applicant are sufficient to command the confidence of the | 31 |
| community and to warrant belief that the business of | 32 |
| facilitating refund anticipation loans or refund anticipation |
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| checks will be operated within the purposes of this Act, the | 2 |
| Department shall register the applicant and shall issue to the | 3 |
| applicant a certificate of registration. Upon receipt of a | 4 |
| certificate of registration, the applicant is registered under | 5 |
| this Act and may engage in the business of facilitating refund | 6 |
| anticipation loans and refund anticipation checks at the | 7 |
| offices identified on the application for registration. | 8 |
| (b) If the Department does not find that the applicant's | 9 |
| responsibility and general fitness are sufficient to command | 10 |
| the confidence of the community and to warrant that the | 11 |
| business of facilitating refund anticipation loans and refund | 12 |
| anticipation checks will be operated within the purposes of | 13 |
| this Act, the Department shall deny the applicant's application | 14 |
| for registration and shall notify the applicant of the reasons | 15 |
| for the denial. Within 5 days after receipt of notice of the | 16 |
| Department's denial of its application for registration, the | 17 |
| applicant may make written demand to the Department for a | 18 |
| hearing. The Department shall conduct an informal hearing on | 19 |
| the matter within a reasonable time after receipt of the | 20 |
| applicant's demand for a hearing. | 21 |
| (c) On or before December 31 of the year in which the | 22 |
| initial application was approved under subsection (a) of this | 23 |
| Section and on or before December 31 of each year thereafter, | 24 |
| each registrant shall pay an annual fee of $1,000 for each | 25 |
| office at which the registrant intends to facilitate refund | 26 |
| anticipation loans or refund anticipation checks. | 27 |
| Section 25. Posting of registration, fee schedules, and | 28 |
| disclosures. | 29 |
| (a) Each registrant shall prominently display in each place | 30 |
| of business in this State in which it facilitates the making of | 31 |
| refund anticipation loans or refund anticipation checks, a | 32 |
| certificate of registration under this Act and a schedule | 33 |
| showing the current fees: |
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| (1) for refund anticipation loans facilitated at the | 2 |
| office; | 3 |
| (2) for refund anticipation checks facilitated at the | 4 |
| office; and | 5 |
| (3) for the electronic filing of the consumer's tax | 6 |
| return. | 7 |
| (b) Each registrant shall display on each fee schedule | 8 |
| examples of the refund anticipation loan interest rates for | 9 |
| refund anticipation loans of $200, $500, $1,000, $1,500, | 10 |
| $2,000, and $5,000. | 11 |
| (c) Each registrant shall also prominently display all of | 12 |
| the following on each fee schedule: | 13 |
| (1) A legend, centered, in bold, capital, one-inch | 14 |
| letters stating: "NOTICE CONCERNING REFUND ANTICIPATION | 15 |
| LOANS". | 16 |
| (2) The following statement: "When you take out a | 17 |
| refund anticipation loan, you are borrowing money against | 18 |
| your tax refund. If your tax refund is less than expected, | 19 |
| you must still repay the entire amount of the loan. If your | 20 |
| refund is delayed, you may have to pay additional costs. | 21 |
| YOU CAN GET YOUR REFUND IN ABOUT 10 DAYS WITHOUT GETTING A | 22 |
| LOAN. You can have your tax return filed electronically and | 23 |
| your refund direct deposited into your own bank account | 24 |
| without obtaining a loan or paying fees for an extra | 25 |
| product.". | 26 |
| (d) The postings required under this Section shall be made | 27 |
| in no less than 28-point type on a document measuring no less | 28 |
| than 16 inches by 20 inches and shall be displayed in a | 29 |
| prominent location at each office in which the registrant is | 30 |
| facilitating refund anticipation loans. | 31 |
| (e) No registrant may facilitate a refund anticipation loan | 32 |
| or refund anticipation check unless (i) the postings required | 33 |
| under this Section are displayed in the manner required under | 34 |
| this Section and (ii) the fee actually charged for the refund |
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| anticipation loan or refund anticipation check is the same as | 2 |
| the fee displayed on the schedule. | 3 |
| Section 30. Application disclosures. At the time a consumer | 4 |
| applies for a refund anticipation loan or refund anticipation | 5 |
| check, the registrant shall disclose to the consumer, on a form | 6 |
| separate from the application, in 14-point type, unless | 7 |
| otherwise noted, all of the following: | 8 |
| (1) The refund anticipation loan fee. | 9 |
| (2) The fee for electronic filing of a tax return. | 10 |
| (3) The time within which the proceeds of the refund | 11 |
| anticipation loan or refund anticipation check will be paid | 12 |
| to the consumer if the loan or check is approved. | 13 |
| (4) For refund anticipation loans, the following | 14 |
| disclosures: | 15 |
| (A) a legend, centered, in bold, capital letters, | 16 |
| and in 18-point type stating "NOTICE"; and | 17 |
| (B) the following statement: "This is a loan. This | 18 |
| loan is borrowing money against your tax refund. If | 19 |
| your tax refund is less than expected, you must still | 20 |
| repay the entire amount of the loan. If your refund is | 21 |
| delayed, you may have to pay additional costs. YOU CAN | 22 |
| GET YOUR REFUND IN ABOUT 10 DAYS WITHOUT GETTING THIS | 23 |
| LOAN. You can have your tax return filed electronically | 24 |
| and your refund direct deposited into your own bank | 25 |
| account without obtaining a loan or other paid | 26 |
| product.". | 27 |
| (5) For refund anticipation loans, disclosure of the | 28 |
| refund anticipation loan interest rate. | 29 |
| (6) For refund anticipation checks, the following | 30 |
| disclosures: | 31 |
| (A) a legend, centered, in bold, capital letters, | 32 |
| and in 18-point type stating "NOTICE"; and | 33 |
| (B) the following statement: "You are paying |
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| (amount of refund anticipation check fee) to get your | 2 |
| refund check through (name of issuer of refund | 3 |
| anticipation check). YOU CAN AVOID THIS FEE AND STILL | 4 |
| RECEIVE YOUR REFUND IN ABOUT 10 DAYS BY HAVING THE IRS | 5 |
| DIRECT DEPOSIT YOUR REFUND INTO YOUR OWN BANK ACCOUNT. | 6 |
| You can also wait for the IRS to mail you a check. If | 7 |
| you do not have a bank account, you may wish to | 8 |
| consider getting one.". | 9 |
| Section 35. Duties of registrant. Each registrant shall do | 10 |
| all of the following: | 11 |
| (1) Arrange the refund anticipation loan or refund | 12 |
| anticipation check, or inform the consumer that the | 13 |
| application is rejected, promptly after the consumer | 14 |
| applies for the refund anticipation loan or refund | 15 |
| anticipation check. | 16 |
| (2) Provide to the consumer, prior to consummation of | 17 |
| the loan or check transaction, in a form that can be kept | 18 |
| by the consumer: | 19 |
| (A) a copy of the completed loan or check | 20 |
| application and agreement; | 21 |
| (B) the disclosures required by Section 30; and | 22 |
| (C) for refund anticipation loans, the disclosures | 23 |
| required by the federal Truth In Lending Act. | 24 |
| (3) Provide the disclosures required by Section 30 in | 25 |
| English and in the language in which the loan was | 26 |
| negotiated. | 27 |
| Section 40. Prohibited activities. No person, including, | 28 |
| but not limited to, any officer, agent, employee, or | 29 |
| representative, in the making or facilitating of a refund | 30 |
| anticipation loan or refund anticipation check shall do any of | 31 |
| the following: | 32 |
| (1) Misrepresent a factor or condition of the refund |
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| anticipation loan or refund anticipation check or make any | 2 |
| oral statements contradicting any of the information | 3 |
| required to be disclosed under this Act. | 4 |
| (2) Fail to comply with any provision of this Act. | 5 |
| (3) Threaten to take any action that is prohibited by | 6 |
| this Act or by any other law or that the person does not | 7 |
| actually intend to take. | 8 |
| (4) Make or facilitate a refund anticipation loan for | 9 |
| which the refund anticipation loan interest rate is greater | 10 |
| than 36% per annum. Any refund anticipation loan for which | 11 |
| the refund anticipation loan interest rate exceeds 36% per | 12 |
| annum is void ab initio. | 13 |
| (5) Directly or indirectly charge or arrange for the | 14 |
| charging of any interest, fee, or charge related to a | 15 |
| refund anticipation loan or refund anticipation check, | 16 |
| other than those specifically authorized by this Act, | 17 |
| including, but not limited to: | 18 |
| (A) charges for insurance; | 19 |
| (B) attorney's fees or other collection costs; or | 20 |
| (C) check cashing fees. | 21 |
| (6) Include any of the following provisions in any | 22 |
| document provided or signed in connection with a refund | 23 |
| anticipation loan or refund anticipation check, including | 24 |
| the loan application or agreement: | 25 |
| (A) A hold harmless clause. | 26 |
| (B) A confession of judgment clause. | 27 |
| (C) A waiver of the right to a jury trial, if | 28 |
| applicable, in any action brought by or against the | 29 |
| consumer. | 30 |
| (D) Any assignment of or order for payment of wages | 31 |
| or other compensation for services. | 32 |
| (E) A provision in which the consumer agrees not to | 33 |
| assert any claim or defense arising out of the contract | 34 |
| or to seek any remedies pursuant to Section 50 of this |
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| Act. | 2 |
| (F) A waiver of any provision of this Act. Any | 3 |
| waiver of any provision of this Act is null and void | 4 |
| and of no force and effect. | 5 |
| (G) A waiver of the right to injunctive, | 6 |
| declaratory, or other equitable relief or relief on a | 7 |
| class-wide basis. | 8 |
| (H) A provision requiring that any aspect of a | 9 |
| resolution of a dispute between the parties to the | 10 |
| agreement be kept confidential. This subparagraph (H) | 11 |
| shall not affect the right of the parties to agree that | 12 |
| certain specified information is a trade secret or | 13 |
| otherwise confidential or to later agree, after the | 14 |
| dispute arises, to keep a resolution confidential. | 15 |
| (7) Take or arrange for a creditor to take a security | 16 |
| interest in any property of the consumer other than the | 17 |
| proceeds of the consumer's tax refund in order to secure | 18 |
| payment of a refund anticipation loan. | 19 |
| (8) Directly or indirectly, individually or in | 20 |
| conjunction or cooperation with another person, engage in | 21 |
| the collection of an outstanding or delinquent refund | 22 |
| anticipation loan for any creditor or assignee, including, | 23 |
| but not limited to, soliciting the execution of, | 24 |
| processing, receiving, or accepting an application or | 25 |
| agreement for a refund anticipation loan or refund | 26 |
| anticipation check that contains a provision permitting | 27 |
| the creditor to repay, by offset or other means, an | 28 |
| outstanding or delinquent refund anticipation loan for | 29 |
| that creditor or any creditor from the proceeds of the | 30 |
| consumer's tax refund. | 31 |
| (9) Facilitate, refer, or solicit consumers on behalf | 32 |
| of a third party engaged in check cashing for a fee or | 33 |
| permit third party check cashing for a fee in any place of | 34 |
| business identified on the application for registration. |
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| (10) Facilitate any loan that is secured by or that the | 2 |
| creditor arranges to be repaid directly from the proceeds | 3 |
| of the consumer's State income tax refund from the State | 4 |
| treasury. | 5 |
| (11) Make a misrepresentation of fact in obtaining or | 6 |
| attempting to obtain a registration as a facilitator. | 7 |
| (12) Use or permit the use of a consumer's federal or | 8 |
| State earned income tax credit to secure a refund | 9 |
| anticipation loan. | 10 |
| (13) Engage in any other action prohibited by rule by | 11 |
| the Department. | 12 |
| Section 45. Administrative remedies. | 13 |
| (a) Whenever the Department believes or has notice that any | 14 |
| facilitator is in violation of this Act, the Department shall | 15 |
| give reasonable notice to the facilitator of the suspected | 16 |
| violation, and shall provide an opportunity for the facilitator | 17 |
| to be heard. If, following the hearing, the Department finds | 18 |
| that any action of the facilitator is in violation of this Act, | 19 |
| the Department shall order the facilitator to cease and desist | 20 |
| from the action. The Department may make investigations, | 21 |
| subpoena witnesses, and require audits and reports in | 22 |
| preparation for the hearing and shall make findings of fact. | 23 |
| All hearings shall be open to the public. | 24 |
| If the facilitator continues to engage in an action in | 25 |
| violation of the Department's order to cease and desist, a | 26 |
| penalty of $1,000 shall be imposed against the facilitator for | 27 |
| each action in violation of the Department's order. | 28 |
| (b) After notice and a hearing and upon the finding that a | 29 |
| facilitator has (i) engaged in a course of conduct that is in | 30 |
| violation of this Act or (ii) continued to engage in an action | 31 |
| in violation of a cease and desist order of the Department that | 32 |
| has not been stayed upon application of the facilitator, the | 33 |
| Department may, at its discretion, either temporarily suspend |
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| or permanently revoke the registration of the facilitator. The | 2 |
| revocation, suspension, or surrender of any registration under | 3 |
| this Act shall not relieve the registrant from civil or | 4 |
| criminal liability for acts committed prior thereto. | 5 |
| (c) The Department shall: | 6 |
| (1) maintain a list of registrants that shall be | 7 |
| available to interested persons and the public; | 8 |
| (2) establish a toll-free telephone number whereby | 9 |
| consumers may obtain information about registrants and | 10 |
| complaint forms; and | 11 |
| (3) establish a complaint process whereby an aggrieved | 12 |
| consumer or any member of the public may file a complaint | 13 |
| against any facilitator who violates any provision of this | 14 |
| Act. | 15 |
| All complaints shall be considered public records pursuant | 16 |
| to the Freedom of Information Act, except that any portion of a | 17 |
| complaint that includes the complainant's name, address, or | 18 |
| other personal identifying information shall be exempt from | 19 |
| public inspection under the Freedom of Information Act. The | 20 |
| Department shall hold a hearing pursuant to subsection (a) of | 21 |
| this Section upon the request of a party to the complaint. The | 22 |
| Department may, after the hearing, issue cease and desist | 23 |
| orders pursuant to subsection (a) or suspend or revoke the | 24 |
| facilitator's certificate of registration, as provided in | 25 |
| subsection (b) of this Section. | 26 |
| Section 50. Private right of action. | 27 |
| (a) The remedies provided in this Section are cumulative | 28 |
| and apply to all facilitators. | 29 |
| (b) A facilitator who fails to comply with any provision of | 30 |
| this Act is liable to the consumer for all of the following: | 31 |
| (1) Actual and consequential damages. | 32 |
| (2) Statutory damages of $2,000 (to be increased | 33 |
| annually based proportionally on changes in the Consumer |
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| Price Index, with fractional amounts rounded to the nearest | 2 |
| dollar) or 3 times the amount of the refund anticipation | 3 |
| loan fee or other unauthorized charge, whichever is | 4 |
| greater. | 5 |
| (3) Reasonable attorney's fees and costs. | 6 |
| (c) Any person may sue for injunctive or other appropriate | 7 |
| equitable relief to enforce this Act. | 8 |
| (d) Any consumer may bring a class action suit to enforce | 9 |
| this Act. In any class action, a facilitator who fails to | 10 |
| comply with any provision of this Act is liable for all of the | 11 |
| following: | 12 |
| (1) Actual and consequential damages for each class | 13 |
| member. | 14 |
| (2) Statutory damages as set forth in item (2) of | 15 |
| subsection (b) of this Section for each class member. | 16 |
| (3) Reasonable attorney's fees and costs. | 17 |
| (e) The remedies provided in this Section are not intended | 18 |
| to be the exclusive remedies available to a consumer nor must | 19 |
| the consumer exhaust any administrative remedies provided | 20 |
| under this Act or any other applicable law. | 21 |
| Section 55. Consumer fraud and deceptive business | 22 |
| practices. Any violation of this Act constitutes a violation of | 23 |
| the Consumer Fraud and Deceptive Business Practices Act. | 24 |
| Section 60. Rules. The Department may adopt rules necessary | 25 |
| to effectuate the purposes of this Act, to provide for the | 26 |
| protection of the borrowing public, and to assist facilitators | 27 |
| in interpreting this Act. The Department may modify the | 28 |
| disclosures required in subsection (c) of Section 25 and | 29 |
| subsection (d) of Section 30 of this Act to the extent that a | 30 |
| revision of the 10-day estimate for receiving a refund from the | 31 |
| Internal Revenue Service (with electronic filing and direct | 32 |
| deposit) is appropriate. |
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| Section 65. Annual reports. Beginning on July 1, 2007 and | 2 |
| on or before July 1 of each year thereafter, each registrant | 3 |
| shall file an annual report with the Department pursuant to | 4 |
| procedures established by the Department by rule. The | 5 |
| Department shall compile an annual consolidated report | 6 |
| combining the annual reports of all registrants and make it | 7 |
| available to the public. These reports shall include all of the | 8 |
| following items for the time period beginning on April 15 of | 9 |
| the year prior to the year in which the report is filed and | 10 |
| through April 14 of the year in which the report is filed: | 11 |
| (1) The total number and dollar amount of refund | 12 |
| anticipation loans facilitated by each registrant. | 13 |
| (2) The total number and dollar amount of refund | 14 |
| anticipation checks facilitated by each registrant. | 15 |
| (3) The average number of days for which refund | 16 |
| anticipation loans facilitated by each registrant were | 17 |
| outstanding before being repaid. | 18 |
| (4) The name and address of each creditor or person for | 19 |
| whom the registrant facilitates refund anticipation loans | 20 |
| or refund anticipation checks. | 21 |
| (5) Any other information required by the Department. | 22 |
| Section 97. Severability. The provisions of this Act are | 23 |
| severable under Section 1.31 of the Statute on Statutes.
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| Section 900. The Freedom of Information Act is amended by | 25 |
| changing Section 7 as follows: | 26 |
| (5 ILCS 140/7) (from Ch. 116, par. 207) | 27 |
| Sec. 7. Exemptions.
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| (1) The following shall be exempt from inspection and | 29 |
| copying:
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| (a) Information specifically prohibited from |
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| disclosure by federal or
State law or rules and regulations | 2 |
| adopted under federal or State law.
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| (b) Information that, if disclosed, would constitute a | 4 |
| clearly
unwarranted invasion of personal privacy, unless | 5 |
| the disclosure is
consented to in writing by the individual | 6 |
| subjects of the information. The
disclosure of information | 7 |
| that bears on the public duties of public
employees and | 8 |
| officials shall not be considered an invasion of personal
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| privacy. Information exempted under this subsection (b) | 10 |
| shall include but
is not limited to:
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| (i) files and personal information maintained with | 12 |
| respect to
clients, patients, residents, students or | 13 |
| other individuals receiving
social, medical, | 14 |
| educational, vocational, financial, supervisory or
| 15 |
| custodial care or services directly or indirectly from | 16 |
| federal agencies
or public bodies;
| 17 |
| (ii) personnel files and personal information | 18 |
| maintained with
respect to employees, appointees or | 19 |
| elected officials of any public body or
applicants for | 20 |
| those positions;
| 21 |
| (iii) files and personal information maintained | 22 |
| with respect to any
applicant, registrant or licensee | 23 |
| by any public body cooperating with or
engaged in | 24 |
| professional or occupational registration, licensure | 25 |
| or discipline;
| 26 |
| (iv) information required of any taxpayer in | 27 |
| connection with the
assessment or collection of any tax | 28 |
| unless disclosure is otherwise required
by State | 29 |
| statute;
| 30 |
| (v) information revealing the identity of persons | 31 |
| who file complaints
with or provide information to | 32 |
| administrative, investigative, law enforcement
or | 33 |
| penal agencies; provided, however, that identification | 34 |
| of witnesses to
traffic accidents, traffic accident |
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| reports, and rescue reports may be provided
by agencies | 2 |
| of local government, except in a case for which a | 3 |
| criminal
investigation is ongoing, without | 4 |
| constituting a clearly unwarranted per se
invasion of | 5 |
| personal privacy under this subsection; and
| 6 |
| (vi) the names, addresses, or other personal | 7 |
| information of
participants and registrants in park | 8 |
| district, forest preserve district, and
conservation | 9 |
| district programs.
| 10 |
| (c) Records compiled by any public body for | 11 |
| administrative enforcement
proceedings and any law | 12 |
| enforcement or correctional agency for
law enforcement | 13 |
| purposes or for internal matters of a public body,
but only | 14 |
| to the extent that disclosure would:
| 15 |
| (i) interfere with pending or actually and | 16 |
| reasonably contemplated
law enforcement proceedings | 17 |
| conducted by any law enforcement or correctional
| 18 |
| agency;
| 19 |
| (ii) interfere with pending administrative | 20 |
| enforcement proceedings
conducted by any public body;
| 21 |
| (iii) deprive a person of a fair trial or an | 22 |
| impartial hearing;
| 23 |
| (iv) unavoidably disclose the identity of a | 24 |
| confidential source or
confidential information | 25 |
| furnished only by the confidential source;
| 26 |
| (v) disclose unique or specialized investigative | 27 |
| techniques other than
those generally used and known or | 28 |
| disclose internal documents of
correctional agencies | 29 |
| related to detection, observation or investigation of
| 30 |
| incidents of crime or misconduct;
| 31 |
| (vi) constitute an invasion of personal privacy | 32 |
| under subsection (b) of
this Section;
| 33 |
| (vii) endanger the life or physical safety of law | 34 |
| enforcement personnel
or any other person; or
|
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| (viii) obstruct an ongoing criminal investigation.
| 2 |
| (d) Criminal history record information maintained by | 3 |
| State or local
criminal justice agencies, except the | 4 |
| following which shall be open for
public inspection and | 5 |
| copying:
| 6 |
| (i) chronologically maintained arrest information, | 7 |
| such as traditional
arrest logs or blotters;
| 8 |
| (ii) the name of a person in the custody of a law | 9 |
| enforcement agency and
the charges for which that | 10 |
| person is being held;
| 11 |
| (iii) court records that are public;
| 12 |
| (iv) records that are otherwise available under | 13 |
| State or local law; or
| 14 |
| (v) records in which the requesting party is the | 15 |
| individual
identified, except as provided under part | 16 |
| (vii) of
paragraph (c) of subsection (1) of this | 17 |
| Section.
| 18 |
| "Criminal history record information" means data | 19 |
| identifiable to an
individual and consisting of | 20 |
| descriptions or notations of arrests,
detentions, | 21 |
| indictments, informations, pre-trial proceedings, trials, | 22 |
| or
other formal events in the criminal justice system or | 23 |
| descriptions or
notations of criminal charges (including | 24 |
| criminal violations of local
municipal ordinances) and the | 25 |
| nature of any disposition arising therefrom,
including | 26 |
| sentencing, court or correctional supervision, | 27 |
| rehabilitation and
release. The term does not apply to | 28 |
| statistical records and reports in
which individuals are | 29 |
| not identified and from which
their identities are not | 30 |
| ascertainable, or to information that is for
criminal | 31 |
| investigative or intelligence purposes.
| 32 |
| (e) Records that relate to or affect the security of | 33 |
| correctional
institutions and detention facilities.
| 34 |
| (f) Preliminary drafts, notes, recommendations, |
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| memoranda and other
records in which opinions are | 2 |
| expressed, or policies or actions are
formulated, except | 3 |
| that a specific record or relevant portion of a
record | 4 |
| shall not be exempt when the record is publicly cited
and | 5 |
| identified by the head of the public body. The exemption | 6 |
| provided in
this paragraph (f) extends to all those records | 7 |
| of officers and agencies
of the General Assembly that | 8 |
| pertain to the preparation of legislative
documents.
| 9 |
| (g) Trade secrets and commercial or financial | 10 |
| information obtained from
a person or business where the | 11 |
| trade secrets or information are
proprietary, privileged | 12 |
| or confidential, or where disclosure of the trade
secrets | 13 |
| or information may cause competitive harm, including all
| 14 |
| information determined to be confidential under Section | 15 |
| 4002 of the
Technology Advancement and Development Act. | 16 |
| Nothing contained in this
paragraph (g) shall be construed | 17 |
| to prevent a person or business from
consenting to | 18 |
| disclosure.
| 19 |
| (h) Proposals and bids for any contract, grant, or | 20 |
| agreement, including
information which if it were | 21 |
| disclosed would frustrate procurement or give
an advantage | 22 |
| to any person proposing to enter into a contractor | 23 |
| agreement
with the body, until an award or final selection | 24 |
| is made. Information
prepared by or for the body in | 25 |
| preparation of a bid solicitation shall be
exempt until an | 26 |
| award or final selection is made.
| 27 |
| (i) Valuable formulae,
computer geographic systems,
| 28 |
| designs, drawings and research data obtained or
produced by | 29 |
| any public body when disclosure could reasonably be | 30 |
| expected to
produce private gain or public loss.
The | 31 |
| exemption for "computer geographic systems" provided in | 32 |
| this paragraph
(i) does not extend to requests made by news | 33 |
| media as defined in Section 2 of
this Act when the | 34 |
| requested information is not otherwise exempt and the only
|
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| purpose of the request is to access and disseminate | 2 |
| information regarding the
health, safety, welfare, or | 3 |
| legal rights of the general public.
| 4 |
| (j) Test questions, scoring keys and other examination | 5 |
| data used to
administer an academic examination or | 6 |
| determined the qualifications of an
applicant for a license | 7 |
| or employment.
| 8 |
| (k) Architects' plans, engineers' technical | 9 |
| submissions, and
other
construction related technical | 10 |
| documents for
projects not constructed or developed in | 11 |
| whole or in part with public funds
and the same for | 12 |
| projects constructed or developed with public funds, but
| 13 |
| only to the extent
that disclosure would compromise | 14 |
| security, including but not limited to water
treatment | 15 |
| facilities, airport facilities, sport stadiums, convention | 16 |
| centers,
and all government owned, operated, or occupied | 17 |
| buildings.
| 18 |
| (l) Library circulation and order records identifying | 19 |
| library users with
specific materials.
| 20 |
| (m) Minutes of meetings of public bodies closed to the
| 21 |
| public as provided in the Open Meetings Act until the | 22 |
| public body
makes the minutes available to the public under | 23 |
| Section 2.06 of the Open
Meetings Act.
| 24 |
| (n) Communications between a public body and an | 25 |
| attorney or auditor
representing the public body that would | 26 |
| not be subject to discovery in
litigation, and materials | 27 |
| prepared or compiled by or for a public body in
| 28 |
| anticipation of a criminal, civil or administrative | 29 |
| proceeding upon the
request of an attorney advising the | 30 |
| public body, and materials prepared or
compiled with | 31 |
| respect to internal audits of public bodies.
| 32 |
| (o) Information received by a primary or secondary | 33 |
| school, college or
university under its procedures for the | 34 |
| evaluation of faculty members by
their academic peers.
|
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| (p) Administrative or technical information associated | 2 |
| with automated
data processing operations, including but | 3 |
| not limited to software,
operating protocols, computer | 4 |
| program abstracts, file layouts, source
listings, object | 5 |
| modules, load modules, user guides, documentation
| 6 |
| pertaining to all logical and physical design of | 7 |
| computerized systems,
employee manuals, and any other | 8 |
| information that, if disclosed, would
jeopardize the | 9 |
| security of the system or its data or the security of
| 10 |
| materials exempt under this Section.
| 11 |
| (q) Documents or materials relating to collective | 12 |
| negotiating matters
between public bodies and their | 13 |
| employees or representatives, except that
any final | 14 |
| contract or agreement shall be subject to inspection and | 15 |
| copying.
| 16 |
| (r) Drafts, notes, recommendations and memoranda | 17 |
| pertaining to the
financing and marketing transactions of | 18 |
| the public body. The records of
ownership, registration, | 19 |
| transfer, and exchange of municipal debt
obligations, and | 20 |
| of persons to whom payment with respect to these | 21 |
| obligations
is made.
| 22 |
| (s) The records, documents and information relating to | 23 |
| real estate
purchase negotiations until those negotiations | 24 |
| have been completed or
otherwise terminated. With regard to | 25 |
| a parcel involved in a pending or
actually and reasonably | 26 |
| contemplated eminent domain proceeding under
Article VII | 27 |
| of the Code of Civil Procedure, records, documents and
| 28 |
| information relating to that parcel shall be exempt except | 29 |
| as may be
allowed under discovery rules adopted by the | 30 |
| Illinois Supreme Court. The
records, documents and | 31 |
| information relating to a real estate sale shall be
exempt | 32 |
| until a sale is consummated.
| 33 |
| (t) Any and all proprietary information and records | 34 |
| related to the
operation of an intergovernmental risk |
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| management association or
self-insurance pool or jointly | 2 |
| self-administered health and accident
cooperative or pool.
| 3 |
| (u) Information concerning a university's adjudication | 4 |
| of student or
employee grievance or disciplinary cases, to | 5 |
| the extent that disclosure
would reveal the identity of the | 6 |
| student or employee and information
concerning any public | 7 |
| body's adjudication of student or employee grievances
or | 8 |
| disciplinary cases, except for the final outcome of the | 9 |
| cases.
| 10 |
| (v) Course materials or research materials used by | 11 |
| faculty members.
| 12 |
| (w) Information related solely to the internal | 13 |
| personnel rules and
practices of a public body.
| 14 |
| (x) Information contained in or related to | 15 |
| examination, operating, or
condition reports prepared by, | 16 |
| on behalf of, or for the use of a public
body responsible | 17 |
| for the regulation or supervision of financial
| 18 |
| institutions or insurance companies, unless disclosure is | 19 |
| otherwise
required by State law.
| 20 |
| (y) Information the disclosure of which is restricted | 21 |
| under Section
5-108 of the Public Utilities Act.
| 22 |
| (z) Manuals or instruction to staff that relate to | 23 |
| establishment or
collection of liability for any State tax | 24 |
| or that relate to investigations
by a public body to | 25 |
| determine violation of any criminal law.
| 26 |
| (aa) Applications, related documents, and medical | 27 |
| records received by
the Experimental Organ Transplantation | 28 |
| Procedures Board and any and all
documents or other records | 29 |
| prepared by the Experimental Organ
Transplantation | 30 |
| Procedures Board or its staff relating to applications
it | 31 |
| has received.
| 32 |
| (bb) Insurance or self insurance (including any | 33 |
| intergovernmental risk
management association or self | 34 |
| insurance pool) claims, loss or risk
management |
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| information, records, data, advice or communications.
| 2 |
| (cc) Information and records held by the Department of | 3 |
| Public Health and
its authorized representatives relating | 4 |
| to known or suspected cases of
sexually transmissible | 5 |
| disease or any information the disclosure of which
is | 6 |
| restricted under the Illinois Sexually Transmissible | 7 |
| Disease Control Act.
| 8 |
| (dd) Information the disclosure of which is exempted | 9 |
| under Section 30
of the Radon Industry Licensing Act.
| 10 |
| (ee) Firm performance evaluations under Section 55 of | 11 |
| the
Architectural, Engineering, and Land Surveying | 12 |
| Qualifications Based
Selection Act.
| 13 |
| (ff) Security portions of system safety program plans, | 14 |
| investigation
reports, surveys, schedules, lists, data, or | 15 |
| information compiled, collected,
or prepared by or for the | 16 |
| Regional Transportation Authority under Section 2.11
of | 17 |
| the Regional Transportation Authority Act or the St. Clair | 18 |
| County Transit
District under the
Bi-State Transit Safety | 19 |
| Act.
| 20 |
| (gg) Information the disclosure of which is restricted | 21 |
| and
exempted under Section 50 of the Illinois Prepaid | 22 |
| Tuition Act.
| 23 |
| (hh) Information the disclosure of which is
exempted | 24 |
| under the State Officials and Employees Ethics Act.
| 25 |
| (ii) Beginning July 1, 1999, information that would | 26 |
| disclose
or might lead to the disclosure of
secret or | 27 |
| confidential information, codes, algorithms, programs, or | 28 |
| private
keys intended to be used to create electronic or | 29 |
| digital signatures under the
Electronic Commerce Security | 30 |
| Act.
| 31 |
| (jj) Information contained in a local emergency energy | 32 |
| plan submitted to
a municipality in accordance with a local | 33 |
| emergency energy plan ordinance that
is adopted under | 34 |
| Section 11-21.5-5 of the Illinois Municipal Code.
|
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| (kk) Information and data concerning the distribution | 2 |
| of
surcharge moneys collected and remitted by wireless | 3 |
| carriers under the Wireless
Emergency Telephone Safety | 4 |
| Act.
| 5 |
| (ll) Vulnerability assessments, security measures, and | 6 |
| response policies
or plans that are designed to identify, | 7 |
| prevent, or respond to potential
attacks upon a community's | 8 |
| population or systems, facilities, or installations,
the | 9 |
| destruction or contamination of which would constitute a | 10 |
| clear and present
danger to the health or safety of the | 11 |
| community, but only to the extent that
disclosure could | 12 |
| reasonably be expected to jeopardize the effectiveness of | 13 |
| the
measures or the safety of the personnel who implement | 14 |
| them or the public.
Information exempt under this item may | 15 |
| include such things as details
pertaining to the | 16 |
| mobilization or deployment of personnel or equipment, to | 17 |
| the
operation of communication systems or protocols, or to | 18 |
| tactical operations.
| 19 |
| (mm) Maps and other records regarding the location or | 20 |
| security of a
utility's generation, transmission, | 21 |
| distribution, storage, gathering,
treatment, or switching | 22 |
| facilities.
| 23 |
| (nn) Law enforcement officer identification | 24 |
| information or
driver
identification
information compiled | 25 |
| by a law enforcement agency or the Department of
| 26 |
| Transportation
under Section 11-212 of the Illinois | 27 |
| Vehicle Code.
| 28 |
| (oo) Records and information provided to a residential
| 29 |
| health care
facility resident sexual assault
and death | 30 |
| review team or the Residential Health Care Facility | 31 |
| Resident Sexual
Assault and Death Review Teams Executive | 32 |
| Council under the Residential Health
Care Facility | 33 |
| Resident Sexual Assault and Death Review Team Act.
| 34 |
| (pp) Information the disclosure of which is exempted |
|
|
|
09400SB1958sam001 |
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LRB094 11406 LJB 44118 a |
|
| 1 |
| under subsection (c) of Section 45
of the Tax Refund | 2 |
| Anticipation Loan Act.
| 3 |
| (2) This Section does not authorize withholding of | 4 |
| information or limit the
availability of records to the public, | 5 |
| except as stated in this Section or
otherwise provided in this | 6 |
| Act.
| 7 |
| (Source: P.A. 92-16, eff. 6-28-01; 92-241, eff. 8-3-01; 92-281, | 8 |
| eff. 8-7-01; 92-645, eff. 7-11-02; 92-651, eff. 7-11-02; 93-43, | 9 |
| eff. 7-1-03; 93-209, eff. 7-18-03; 93-237, eff. 7-22-03; | 10 |
| 93-325, eff. 7-23-03, 93-422, eff. 8-5-03; 93-577, eff. | 11 |
| 8-21-03; 93-617, eff. 12-9-03.)
| 12 |
| Section 905. The Consumer Fraud and Deceptive Business | 13 |
| Practices Act is amended by changing Section 2Z as follows:
| 14 |
| (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
| 15 |
| Sec. 2Z. Violations of other Acts. Any person who knowingly | 16 |
| violates
the Automotive Repair Act,
the Home Repair and | 17 |
| Remodeling Act,
the Dance Studio Act,
the Physical Fitness | 18 |
| Services Act,
the Hearing Instrument Consumer Protection Act,
| 19 |
| the Illinois Union Label Act,
the Job Referral and Job Listing | 20 |
| Services Consumer Protection Act,
the Travel Promotion | 21 |
| Consumer Protection Act,
the Credit Services Organizations | 22 |
| Act,
the Automatic Telephone Dialers Act,
the Pay-Per-Call | 23 |
| Services Consumer Protection Act,
the Telephone Solicitations | 24 |
| Act,
the Illinois Funeral or Burial Funds Act,
the Cemetery | 25 |
| Care Act,
the Safe and Hygienic Bed Act,
the Pre-Need Cemetery | 26 |
| Sales Act,
the High Risk Home Loan Act, subsection (a) or (b) | 27 |
| of Section 3-10 of the
Cigarette Tax Act, subsection
(a) or (b) | 28 |
| of Section 3-10 of the Cigarette Use Tax Act, the Electronic
| 29 |
| Mail Act, paragraph (6)
of
subsection (k) of Section 6-305 of | 30 |
| the Illinois Vehicle Code, the Tax Refund Anticipation Loan | 31 |
| Act, or the Automatic Contract Renewal Act commits an unlawful | 32 |
| practice within the meaning of this Act.
|
|
|
|
09400SB1958sam001 |
- 25 - |
LRB094 11406 LJB 44118 a |
|
| 1 |
| (Source: P.A. 92-426, eff. 1-1-02; 93-561, eff. 1-1-04; 93-950, | 2 |
| eff. 1-1-05.)
| 3 |
| (815 ILCS 177/Act rep.)
| 4 |
| Section 910. The Tax Refund Anticipation Loan Disclosure | 5 |
| Act is repealed.".
|
|