Full Text of HB5674 98th General Assembly
HB5674ham001 98TH GENERAL ASSEMBLY | Rep. Michael J. Zalewski Filed: 3/24/2014
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| 1 | | AMENDMENT TO HOUSE BILL 5674
| 2 | | AMENDMENT NO. ______. Amend House Bill 5674 as follows:
| 3 | | on page 31, immediately below line 12, by inserting the | 4 | | following: | 5 | | "Section 5. The Limited Liability Company Act is amended by | 6 | | changing Sections 1-10, 1-25, 1-28, 5-5, and 5-55 and by adding | 7 | | Section 1-29 as follows:
| 8 | | (805 ILCS 180/1-10)
| 9 | | Sec. 1-10. Limited liability company name.
| 10 | | (a) The name of each limited liability company as set
forth | 11 | | in its articles of organization:
| 12 | | (1) shall contain the terms "limited liability
| 13 | | company", "L.L.C.", or "LLC", or, if organized as a | 14 | | low-profit limited liability company under Section 1-26 of | 15 | | this Act, shall contain the term "L3C";
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| 1 | | (2) may not contain a word or phrase, or an
| 2 | | abbreviation or derivation thereof, the use of which is
| 3 | | prohibited or restricted by any other statute of this
State | 4 | | unless the restriction has been complied with;
| 5 | | (3) shall consist of letters of the English
alphabet, | 6 | | Arabic or Roman numerals, or symbols capable
of being | 7 | | readily reproduced by the Office of the
Secretary of State;
| 8 | | (4) shall not contain any of the following terms:
| 9 | | "Corporation," "Corp.," "Incorporated," "Inc.," "Ltd.,"
| 10 | | "Co.," "Limited Partnership" or "L.P.";
| 11 | | (5) shall be the name under which the limited
liability | 12 | | company transacts business in this State
unless the limited | 13 | | liability company also elects to
adopt an assumed name or | 14 | | names as provided in this Act;
provided, however, that the | 15 | | limited liability company
may use any divisional | 16 | | designation or trade name without
complying with the | 17 | | requirements of this Act, provided
the limited liability | 18 | | company also clearly discloses its
name;
| 19 | | (6) shall not contain any word or phrase that indicates | 20 | | or implies that
the limited liability company is authorized | 21 | | or empowered to be in the business
of a corporate fiduciary | 22 | | unless otherwise permitted by the Secretary of Financial | 23 | | and Professional Regulation Commissioner of the
Office of | 24 | | Banks and Real Estate under Section 1-9 of the Corporate | 25 | | Fiduciary
Act. The word "trust", "trustee", or "fiduciary" | 26 | | may be used by a limited
liability company only if it has |
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| 1 | | first complied with Section 1-9 of the
Corporate Fiduciary | 2 | | Act; and
| 3 | | (7) shall contain the word "trust", if it is a limited | 4 | | liability company
organized for the purpose of accepting | 5 | | and executing trusts ; and
| 6 | | (8) shall not, as to any limited liability company | 7 | | organized or amending its company name on or after April 3, | 8 | | 2009 (the effective date of Public Act 96-7), without the | 9 | | express written consent of the United States Olympic | 10 | | Committee, contain the words: (i) "Olympic"; (ii) | 11 | | "Olympiad"; (iii) "Paralympic"; (iv) "Paralympiad"; (v) | 12 | | "Citius Altius Fortius"; (vi) "CHICOG"; or (vii) "Chicago | 13 | | 2016" . | 14 | | (b) Nothing in this Section or Section 1-20 shall
abrogate | 15 | | or limit the common law or statutory law of unfair
competition | 16 | | or unfair trade practices, nor derogate from the
common law or | 17 | | principles of equity or the statutes of this
State or of the | 18 | | United States of America with respect to the
right to acquire | 19 | | and protect copyrights, trade names,
trademarks, service | 20 | | marks, service names, or any other right
to the exclusive use | 21 | | of names or symbols.
| 22 | | (c) (Blank).
| 23 | | (d) The name shall be distinguishable upon the records
in | 24 | | the Office of the Secretary of State from all of the following:
| 25 | | (1) Any limited liability company that has
articles of | 26 | | organization filed with the Secretary of
State under |
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| 1 | | Section 5-5.
| 2 | | (2) Any foreign limited liability company admitted
to | 3 | | transact business in this State.
| 4 | | (3) Any name for which an exclusive right has been
| 5 | | reserved in the Office of the Secretary of State
under | 6 | | Section 1-15.
| 7 | | (4) Any assumed name that is registered with the
| 8 | | Secretary of State under Section 1-20.
| 9 | | (5) Any corporate name or assumed corporate name of a | 10 | | domestic or
foreign corporation subject to the provisions | 11 | | of Section 4.05 of the
Business Corporation Act of 1983
or | 12 | | Section 104.05 of the General Not For Profit Corporation | 13 | | Act of 1986.
| 14 | | (e) The provisions of subsection (d) of this Section
shall | 15 | | not apply if the organizer files with the Secretary of
State a | 16 | | certified copy of a final decree of a court of
competent | 17 | | jurisdiction establishing the prior right of the
applicant to | 18 | | the use of that name in this State.
| 19 | | (f) The Secretary of State shall determine whether a
name | 20 | | is "distinguishable" from another name for the purposes
of this | 21 | | Act. Without excluding other names that may not
constitute | 22 | | distinguishable names in this State, a name is not
considered | 23 | | distinguishable, for purposes of this Act, solely
because it | 24 | | contains one or more of the following:
| 25 | | (1) The word "limited", "liability" or "company"
or an | 26 | | abbreviation of one of those words.
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| 1 | | (2) Articles, conjunctions, contractions,
| 2 | | abbreviations, or different tenses or number of the same
| 3 | | word.
| 4 | | (Source: P.A. 96-7, eff. 4-3-09; 96-126, eff. 1-1-10; 96-1000, | 5 | | eff. 7-2-10.)
| 6 | | (805 ILCS 180/1-25)
| 7 | | Sec. 1-25. Nature of business. A limited liability company | 8 | | may be formed
for any lawful purpose or business except:
| 9 | | (1) (blank);
| 10 | | (2) insurance unless, for the purpose of carrying on | 11 | | business as a member
of a group including incorporated and | 12 | | individual unincorporated underwriters,
the Director of | 13 | | Insurance finds that the group meets the requirements of
| 14 | | subsection (3) of Section 86 of the Illinois Insurance Code | 15 | | and the limited
liability company, if insolvent, is subject | 16 | | to liquidation by the Director of
Insurance under Article | 17 | | XIII of the Illinois Insurance Code;
| 18 | | (3) the practice of dentistry unless all the members | 19 | | and managers are
licensed as dentists under the Illinois | 20 | | Dental Practice Act; or
| 21 | | (4) the practice of medicine unless all the managers, | 22 | | if any, are
licensed to practice medicine under the Medical | 23 | | Practice Act of 1987 and each
member is either:
| 24 | | (A) licensed to practice medicine under the | 25 | | Medical Practice Act of
1987; or
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| 1 | | (B) a registered medical corporation or | 2 | | corporations organized pursuant
to the Medical | 3 | | Corporation Act; or
| 4 | | (C) a professional corporation organized pursuant | 5 | | to the Professional
Service Corporation Act of | 6 | | physicians licensed to practice under the Medical | 7 | | Practice Act of 1987; or
| 8 | | (D) a limited liability company that satisfies the | 9 | | requirements of
subparagraph (A), (B), or (C) ; or .
| 10 | | (5) the practice of real estate unless all the | 11 | | managers, if any, or every member in a member-managed | 12 | | company are licensed to practice as a managing broker or | 13 | | broker pursuant to the Real Estate License Act of 2000. | 14 | | (Source: P.A. 95-331, eff. 8-21-07; 95-738, eff. 1-1-09.)
| 15 | | (805 ILCS 180/1-28) | 16 | | Sec. 1-28. Certificate of Registration; Department of | 17 | | Financial and Professional Regulation. This Section applies | 18 | | only to a limited liability company that intends to provide, or | 19 | | does provide, professional services that require the | 20 | | individuals engaged in the profession to be licensed by the | 21 | | Department of Financial and Professional Regulation. A limited | 22 | | liability company covered by this Section shall not open, | 23 | | operate, or maintain an establishment for any of the purposes | 24 | | for which a limited liability company may be organized under | 25 | | this Act without obtaining a certificate of registration from |
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| 1 | | the Department. | 2 | | Application for such registration shall be made in writing | 3 | | and shall contain the name and address of the limited liability | 4 | | company and such other information as may be required by the | 5 | | Department. Upon receipt of such application, the Department | 6 | | shall make an investigation of the limited liability company. | 7 | | If the Department finds that the organizers, managers, and | 8 | | members are each licensed pursuant to the laws of Illinois to | 9 | | engage in the particular profession or related professions | 10 | | involved (except that an initial organizer may be a licensed | 11 | | attorney) and if no disciplinary action is pending before the | 12 | | Department against any of them and if it appears that the | 13 | | limited liability company will be conducted in compliance with | 14 | | the law and the rules and regulations of the Department, the | 15 | | Department shall issue, upon payment of a registration fee of | 16 | | $50, a certificate of registration. | 17 | | A separate application shall be submitted for each business | 18 | | location in Illinois. If the limited liability company is using | 19 | | more than one fictitious or assumed name and has an address | 20 | | different from that of the parent company, a separate | 21 | | application shall be submitted for each fictitious or assumed | 22 | | name. | 23 | | Upon written application of the holder, the Department | 24 | | shall renew the certificate if it finds that the limited | 25 | | liability company has complied with its regulations and the | 26 | | provisions of this Act and the applicable licensing Act. This |
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| 1 | | fee for the renewal of a certificate of registration shall be | 2 | | calculated at the rate of $40 per year.
The certificate of | 3 | | registration shall be conspicuously posted upon the premises to | 4 | | which it is applicable , and the limited liability company shall | 5 | | have only those offices which are designated by street address | 6 | | in the articles of organization, or as changed by amendment of | 7 | | such articles . A certificate of registration shall not be | 8 | | assignable. | 9 | | A limited liability company registered under this Section | 10 | | may, for the purposes of dissolution, have as its managers and | 11 | | members individuals who are not licensed by the Department to | 12 | | provide professional services, provided that the limited | 13 | | liability company does not render any professional services or | 14 | | hold itself out as capable or available to render any | 15 | | professional services during the period of dissolution. The | 16 | | Department shall not issue or renew any certificate of | 17 | | registration to a limited liability company during the period | 18 | | of dissolution. A copy of the certificate of dissolution, as | 19 | | issued by the Secretary of State, shall be delivered to the | 20 | | Department within 30 days after its receipt by the managers or | 21 | | members. | 22 | | All fees , civil penalties, and fines collected under this | 23 | | Section and Section 1-29 shall be deposited into the General | 24 | | Professions Dedicated Fund.
| 25 | | (Source: P.A. 96-679, eff. 8-25-09; 96-984, eff. 1-1-11; | 26 | | 96-1000, eff. 7-2-10.) |
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| 1 | | (805 ILCS 180/1-29 new) | 2 | | Sec. 1-29. Certificate of registration; administration and | 3 | | enforcement. | 4 | | This Section applies to a limited liability company subject | 5 | | to Section 1-28 of this Act. | 6 | | No limited liability company organized under this Act may | 7 | | render professional services that require the issuance of a | 8 | | license by the Department, except through its managers, | 9 | | members, agents, or employees who are duly licensed or | 10 | | otherwise legally authorized to render such professional | 11 | | services within this State. | 12 | | Nothing contained in this Act shall be interpreted to | 13 | | abolish, repeal, modify, restrict, or limit the law in effect | 14 | | in this State on the effective date of this amendatory Act of | 15 | | the 98th General Assembly that is applicable to the | 16 | | professional relationship and liabilities between the person | 17 | | furnishing the professional services and the person receiving | 18 | | such professional services or the law that is applicable to the | 19 | | standards for professional conduct. Any manager, member, | 20 | | agent, or employee of a limited liability company shall remain | 21 | | personally and fully liable and accountable for any negligent | 22 | | or wrongful acts or misconduct committed by him or her or by | 23 | | any person under his or her direct supervision and control | 24 | | while rendering professional services on behalf of the limited | 25 | | liability company. However, a limited liability company |
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| 1 | | subject to Section 1-28 shall have no greater liability for the | 2 | | conduct of its agents than any other limited liability company | 3 | | organized under this Act. The limited liability company shall | 4 | | be liable up to the full value of its property for any | 5 | | negligence or wrongful acts or misconduct committed by any of | 6 | | its managers, members, agents, or employees while they are | 7 | | engaged in the rendering of professional services on behalf of | 8 | | the limited liability company. | 9 | | An individual's association with a limited liability | 10 | | company as a manager, member, agent, or employee, shall in no | 11 | | way modify or diminish the jurisdiction of the Department that | 12 | | licensed, certified, or registered the individual for a | 13 | | particular profession. | 14 | | All rights and obligations pertaining to communications | 15 | | made to or information received by any qualified person or the | 16 | | advice he or she gives on such communications or information, | 17 | | shall be extended to the limited liability company of which he | 18 | | or she is a manager, member, agent, or employee, and to the | 19 | | limited liability company's managers, members, agents, and | 20 | | employees. | 21 | | Any limited liability company that, on 2 occasions, issues | 22 | | or delivers a check or other order to the Department that is | 23 | | not honored by the financial institution upon which it is drawn | 24 | | because of insufficient funds on the account, shall pay to the | 25 | | Department, in addition to the amount owing upon such check or | 26 | | other order, a fee of $50. If such check or other order was |
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| 1 | | issued or delivered in payment of a renewal fee and the limited | 2 | | liability company whose certification of registration has | 3 | | lapsed continues to practice as a limited liability company | 4 | | without paying the renewal fee and the $50 fee required under | 5 | | this Section, an additional fee of $100 shall be imposed for | 6 | | practicing without a current license. The Department shall | 7 | | notify the limited liability company whose certificate of | 8 | | registration has lapsed within 30 days after the discovery by | 9 | | the Department that such limited liability company is operating | 10 | | without a current certificate of the fact that the limited | 11 | | liability company is operating without a certificate and of the | 12 | | amount due to the Department, which shall include the lapsed | 13 | | renewal fee and all other fees required by this Section. If the | 14 | | limited liability company whose certification has lapsed seeks | 15 | | a current certificate more than 30 days after the date it | 16 | | receives notification from the Department, it shall be required | 17 | | to apply to the Department for reinstatement of the certificate | 18 | | and to pay all fees due to the Department. The Department may | 19 | | establish a fee for the processing of an application for | 20 | | reinstatement of a certificate that allows the Department to | 21 | | pay all costs and expenses related to the processing of the | 22 | | application. The Director may waive the fees due under this | 23 | | Section in individual cases where he or she finds that in the | 24 | | particular case such fees would be unreasonable or | 25 | | unnecessarily burdensome. | 26 | | The Department may suspend, revoke, or otherwise |
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| 1 | | discipline the certificate of registration for any of the | 2 | | following reasons: | 3 | | (1) the revocation or suspension of the license to | 4 | | practice the profession of any officer, manager, member, | 5 | | agent, or employee not promptly removed or discharged by | 6 | | the limited liability company; | 7 | | (2) unethical professional conduct on the part of any | 8 | | officer, manager, member, agent, or employee not promptly | 9 | | removed or discharged by the limited liability company; | 10 | | (3) the death of the last remaining member; | 11 | | (4) upon finding that the holder of the certificate has | 12 | | failed to comply with the provisions of this Act or the | 13 | | regulations prescribed by the Department; or | 14 | | (5) the failure to file a return, to pay the tax, | 15 | | penalty, or interest shown in a filed return, or to pay any | 16 | | final assessment of tax, penalty, or interest, as required | 17 | | by a tax Act administered by the Illinois Department of | 18 | | Revenue, until such time as the requirements of any such | 19 | | tax Act are satisfied. | 20 | | Before any certificate of registration is suspended or | 21 | | revoked, the holder shall be given
written notice of the | 22 | | proposed action and the reasons for the proposed action and | 23 | | shall be provided a public
hearing by the Department with the | 24 | | right to produce testimony and other evidence
concerning the | 25 | | charges made. The notice shall also state the place and date of | 26 | | the hearing,
which shall be at least 10 days after service of |
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| 1 | | the notice. | 2 | | All orders of the Department denying an application for a | 3 | | certificate of registration or
suspending or revoking a | 4 | | certificate of registration or imposing a civil penalty shall | 5 | | be
subject to judicial review pursuant to the Administrative | 6 | | Review Law. | 7 | | The proceedings for judicial review shall be commenced in | 8 | | the circuit court of the county in which the party applying for | 9 | | review is located; but if the party is not currently located in | 10 | | Illinois, the venue shall be in Sangamon County. The Department | 11 | | shall not be required to certify any record to the court or | 12 | | file any answer in court or otherwise appear in any court in a | 13 | | judicial review proceeding, unless and until the Department has | 14 | | received from the plaintiff payment of the costs of furnishing | 15 | | and certifying the record, which costs shall be determined by | 16 | | the Department. Exhibits shall be certified without cost. | 17 | | Failure on the part of the plaintiff to file a receipt in court | 18 | | is grounds for dismissal of the action. | 19 | | Whenever the Department has reason to believe a limited | 20 | | liability company has opened, operated, or maintained an | 21 | | establishment for any of the purposes for which a limited | 22 | | liability company may be organized under this Act without a | 23 | | certificate of registration from the Department authorized by | 24 | | law to license individuals to engage in the profession or | 25 | | related professions, the Department may issue a notice of | 26 | | violation to the limited liability company. The notice of |
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| 1 | | violation shall provide a period of 30 days after the date of | 2 | | the notice to either file an answer to the satisfaction of the | 3 | | Department or submit an application for registration in | 4 | | compliance with this Act, including payment of the $50 | 5 | | application fee and a late fee of $100 for each year that the | 6 | | limited liability company opened, operated, or maintained an | 7 | | establishment for any of the purposes for which a limited | 8 | | liability company may be organized under this Act without | 9 | | having been issued a certificate of registration, with a | 10 | | maximum late fee of $500. If the limited liability company that | 11 | | is the subject of the notice of violation fails to respond, | 12 | | fails to respond to the satisfaction of the Department, or | 13 | | fails to submit an application for registration, the Department | 14 | | may institute disciplinary proceedings against the limited | 15 | | liability company and may impose a civil penalty up to $10,000 | 16 | | for violation of this Act after affording the limited liability | 17 | | company a hearing in conformance with the requirements of this | 18 | | Act.
| 19 | | (805 ILCS 180/5-5)
| 20 | | Sec. 5-5. Articles of organization.
| 21 | | (a) The articles of organization shall set forth all of
the | 22 | | following:
| 23 | | (1) The name of the limited liability company and
the | 24 | | address of its principal place of business which
may, but | 25 | | need not be a place of business in this State.
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| 1 | | (2) The purposes for which the limited liability
| 2 | | company is organized, which may be stated to be, or to
| 3 | | include, the transaction of any or all lawful businesses
| 4 | | for which limited liability companies may be organized
| 5 | | under this Act.
| 6 | | (3) The name of its registered agent and the
address of | 7 | | its registered office.
| 8 | | (4) If the limited liability company is to be
managed | 9 | | by a manager or managers, the names and
business
addresses | 10 | | of the initial manager or managers.
| 11 | | (5) If management of the limited liability company
is | 12 | | to be vested in the members
under Section 15-1, then the | 13 | | names and addresses of the
initial member or members.
| 14 | | (5.5) The duration of the limited liability company, | 15 | | which shall be perpetual unless otherwise stated.
| 16 | | (6) (Blank).
| 17 | | (7) The name and address of each organizer.
| 18 | | (8) Any other provision, not inconsistent with
law, | 19 | | that the members elect to set out in the articles
of | 20 | | organization for the regulation of the internal
affairs of | 21 | | the limited liability company, including any
provisions | 22 | | that, under this Act, are required or
permitted to be set | 23 | | out in the operating agreement of
the limited liability | 24 | | company.
| 25 | | (b) A limited liability company is organized at the
time | 26 | | articles of organization are filed by the Secretary of
State or |
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| 1 | | at any later time, not more than 60 days after the
filing of | 2 | | the articles of organization, specified in the
articles of | 3 | | organization.
| 4 | | (c) Articles of organization for the organization of a | 5 | | limited liability
company for the purpose of accepting and | 6 | | executing trusts shall not be filed by
the Secretary of State | 7 | | until there is delivered to him or her a statement
executed by | 8 | | the Secretary of Financial and Professional Regulation | 9 | | Commissioner of the Office of Banks and Real Estate that the
| 10 | | organizers of the limited liability company have made | 11 | | arrangements
with the Secretary of Financial and Professional | 12 | | Regulation
Commissioner of the Office of Banks and Real Estate | 13 | | to comply with the
Corporate Fiduciary Act.
| 14 | | (d) Articles of organization for the organization of a | 15 | | limited liability
company as a bank or a savings bank must be | 16 | | filed with the Department of Financial and Professional | 17 | | Regulation Commissioner of
Banks and Real Estate or,
if the | 18 | | bank or savings bank will be organized under federal law, with | 19 | | the
appropriate federal banking regulator.
| 20 | | (Source: P.A. 98-171, eff. 8-5-13.)
| 21 | | (805 ILCS 180/5-55)
| 22 | | Sec. 5-55. Filing in Office of Secretary of State.
| 23 | | (a) Whenever any provision of this Act requires a
limited | 24 | | liability company to file any document with the
Office of the | 25 | | Secretary of State, the requirement means that:
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| 1 | | (1) the original document, executed as described
in | 2 | | Section 5-45, and, if required by this Act to be filed in | 3 | | duplicate, one
copy (which may be a signed
carbon or | 4 | | photocopy) shall be delivered to the Office
of the | 5 | | Secretary of State;
| 6 | | (2) all fees and charges authorized by law to be
| 7 | | collected by the Secretary of State in connection with
the | 8 | | filing of the document shall be tendered to the
Secretary | 9 | | of State; and
| 10 | | (3) unless the Secretary of State finds that the
| 11 | | document does not conform to law, he or she shall,
when all | 12 | | fees have been paid:
| 13 | | (A) endorse on the original and on the copy
the | 14 | | word "Filed" and the month, day, and year of
the filing | 15 | | thereof;
| 16 | | (B) file in his or her office the original
of the | 17 | | document; and
| 18 | | (C) return the copy to the person who filed
it or | 19 | | to that person's representative.
| 20 | | (b) If another Section of this Act specifically
prescribes | 21 | | a manner of filing or signing a specified document
that differs | 22 | | from the corresponding provisions of this
Section, then the | 23 | | provisions of the other Section shall
govern.
| 24 | | (c) Whenever any provision of this Act requires a limited | 25 | | liability company
that is a bank or a savings bank to file any | 26 | | document, that requirement means
that the filing shall be made |
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| 1 | | exclusively with the Department of Financial and Professional | 2 | | Regulation Commissioner of Banks and
Real Estate or, if the | 3 | | bank or savings bank is organized under federal law,
with the | 4 | | appropriate federal banking regulator at such times and in such
| 5 | | manner as required by the Department Commissioner or federal | 6 | | regulator.
| 7 | | (Source: P.A. 92-33, eff. 7-1-01; 93-561, eff. 1-1-04.)".
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