Illinois General Assembly - Full Text of Public Act 093-0192
Illinois General Assembly

Previous General Assemblies

Public Act 093-0192


 

Public Act 93-0192 of the 93rd General Assembly


Public Act 93-0192

HB1089 Enrolled                      LRB093 04120 RLC 04160 b

    AN ACT in relation to criminal law.

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

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

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

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

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

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

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

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

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

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

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

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

Effective Date: 07/14/03