093_HB1089eng HB1089 Engrossed LRB093 04120 RLC 04160 b 1 AN ACT in relation to criminal law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Criminal Code of 1961 is amended by 5 adding Article 37.5 as follows: 6 (720 ILCS 5/Art. 37.5 heading new) 7 ARTICLE 37.5. ANIMAL FIGHTING; FORFEITURE 8 (720 ILCS 5/37.5-5 new) 9 Sec. 37.5-5. Legislative declaration. The General 10 Assembly finds that the forfeiture of real property that is 11 used or intended to be used in connection with any show, 12 exhibition, program or other activity featuring or otherwise 13 involving a fight between an animal and any other animal or 14 human or the intentional killing of any animal for the 15 purpose of sport, wagering or entertainment, will have a 16 significant beneficial effect in deterring the rising 17 incidence of those activities within this State, as well as 18 other crimes that frequently occur in partnership with animal 19 fighting, such as illegal gambling, possession of narcotics, 20 and weapons violations. 21 (720 ILCS 5/37.5-10 new) 22 Sec. 37.5-10. Applicability. A person who commits a 23 felony violation of Section 4.01 of the Humane Care for 24 Animals Act or a felony violation of Section 26-5 of this 25 Code shall forfeit (i) any moneys, profits, or proceeds the 26 person acquired in whole or in part, as a result of 27 committing the violation and (ii) any real property or 28 interest in real property that the sentencing court 29 determines the person acquired in whole or in part, as a HB1089 Engrossed -2- LRB093 04120 RLC 04160 b 1 result of committing the violation or the person maintained 2 or used in whole or in part, to facilitate, directly or 3 indirectly, the commission of the violation. The person shall 4 forfeit any interest in, securities, or claim against, or 5 contractual right of any kind that affords the person a 6 source of influence over, any enterprise that the person has 7 established, operated, controlled, conducted, or participated 8 in conducting if the person's relations to or connection with 9 the interest, security, or claim, or contractual right, 10 directly or indirectly, in whole or in part, is traceable to 11 any thing or benefit that the person has obtained or acquired 12 as a result of a felony violation of Section 4.01 of the 13 Humane Care for Animals Act or a felony violation of Section 14 26-5 of this Code. 15 (720 ILCS 5/37.5-15 new) 16 Sec. 37.5-15. Real property forfeiture. 17 (a) Following the arrest of a person or persons for any 18 felony offense under Section 4.01 of the Humane Care for 19 Animals Act or a felony offense under Section 26-5 of this 20 Code, the State's Attorney of the county in which it occurred 21 or the Attorney General may seek forfeiture of the real 22 property associated with the offense, whether the real 23 property belongs to the person organizing the show, 24 exhibition, program, or other such activity described in 25 subsections (a) through (g) of Section 4.01 of the Humane 26 Care for Animals Act or Section 26-5 of this Code or to any 27 other person participating in the activity described in 28 subsections (a) through (g) of Section 4.01 of the Humane 29 Care for Animals Act or Section 26-5 of this Code, who is 30 related to the organization and operation of the activity or 31 to any person who knowingly allowed the activities to occur 32 on his or her premises. 33 (b) Real property includes any land, home, house, HB1089 Engrossed -3- LRB093 04120 RLC 04160 b 1 apartment, building, garage, site, structure, or facility, 2 whether enclosed or not, and any part or section of any land, 3 home, house, apartment, building, garage, site, structure, or 4 facility and any right title, or interest in the whole of any 5 lot or tract of land and any appurtenances or improvements on 6 the land. Real property includes, but is not limited to, any 7 leasehold or possessory interest or beneficial interest in a 8 land trust. 9 (720 ILCS 5/37.5-20 new) 10 Sec. 37.5-20. Procedure. Proceedings instituted under 11 this Article shall be subject to and conducted in accordance 12 with the procedures set forth in this Section. 13 (a) Notice to owner or interest holder. Whenever notice 14 of pending forfeiture or service of a lis pendens is required 15 under the provisions of this Article, the notice or service 16 shall be given as follows: 17 (1) If the owner's or interest holder's name and 18 current address are known, then by either personal 19 service or mailing a copy of the notice by certified 20 mail, return receipt requested, to that address. For 21 purposes of notice under this Section if a person has 22 been arrested for the conduct giving rise to the 23 forfeiture, then the address provided to the arresting 24 agency at the time of arrest shall be deemed to be that 25 person's known address. Provided, however, if an owner or 26 interest holder's address changes prior to the effective 27 date of the notice of pending forfeitures, the owner or 28 interest holder shall promptly notify the seizing agency 29 of the change in address or, if the owner or interest 30 holder's address changes subsequent to the effective date 31 of the notice of pending forfeitures, the owner or 32 interest holder shall promptly notify the State's 33 Attorney or Attorney General of the change in address; or HB1089 Engrossed -4- LRB093 04120 RLC 04160 b 1 (2) If the owner's or interest holder's address is 2 not known, and is not on record as provided in paragraph 3 (1), then by publication for 3 successive weeks in a 4 newspaper of general circulation in the county in which 5 the seizure occurred; or 6 (3) Notice served under this Article is effective 7 upon personal service, the last date of publication, or 8 the mailing of written notice, whichever is earlier. 9 (b) Probable cause hearing. In an action brought by the 10 People of the State of Illinois under this Section, in which 11 a restraining order, injunction, prohibition, lis pendens, or 12 other action in connection with any property or interest 13 subject to forfeiture under this Article is sought, the 14 circuit court presiding over the trial of the person charged 15 with a felony violation of Section 4.01 of the Humane Care 16 for Animals Act or a felony offense under Section 26-5 of 17 this Code shall first determine whether there is probable 18 cause to believe that the person so charged has committed a 19 felony offense under Section 4.01 of the Humane Care for 20 Animals Act or a felony offense under Section 26-5 of this 21 Code and whether the property or interest, is subject to 22 forfeiture under this Article. To make that determination 23 before entering an order in connection with that property or 24 interest, the court shall conduct a hearing without a jury, 25 at which the People must establish that there is: (i) 26 probable cause that the person charged committed a felony 27 offense under Section 4.01 of the Humane Care for Animals Act 28 or a felony offense under Section 26-5 of this Code and (ii) 29 probable cause that the property or interest may be subject 30 to forfeiture under this Article. The hearing may be 31 conducted simultaneously with a preliminary hearing, if the 32 prosecution is commenced by information or complaint, or by 33 motion of the People at any stage in the proceedings. The 34 court may accept, at a preliminary hearing, (i) the filing of HB1089 Engrossed -5- LRB093 04120 RLC 04160 b 1 an information charging that the defendant committed a felony 2 offense under Section 4.01 of the Humane Care for Animals Act 3 or a felony offense under Section 26-5 of this Code or (ii) 4 the return of an indictment by a grand jury charging that the 5 defendant committed a felony offense under Section 4.01 of 6 the Humane Care for Animals Act or a felony offense under 7 Section 26-5 of this Code as sufficient evidence of probable 8 cause that the person committed the offense. 9 (1) Upon making a finding of probable cause, the 10 circuit court shall enter a restraining order, 11 injunction, lis pendens, or prohibition or shall take 12 other action in connection with the property or other 13 interest subject to forfeiture under this Article as is 14 necessary to insure that the property is not removed from 15 the jurisdiction of the court, concealed, destroyed, or 16 otherwise disposed of by the owner of that property or 17 interest before a forfeiture hearing under this Article. 18 The State's Attorney shall file a certified copy of the 19 restraining order, injunction, or other prohibition with 20 the recorder or registrar of title of each county in 21 which the property may be located. An injunction, 22 restraining order, or other prohibition issued under this 23 Section does not affect the rights of any bonafide 24 purchaser, mortgagee, judgment creditor, or other lien 25 holder that arose before the date the certified copy is 26 filed. 27 (2) The court may at any time, on verified petition 28 by the defendant, conduct a hearing to determine whether 29 all or any portion of the property or interest, which the 30 court previously determined to be subject to forfeiture 31 or subject to any restraining order, injunction, lis 32 pendens, prohibition, or other action, should be 33 released. The court may in its discretion release the 34 property to the defendant for good cause shown. HB1089 Engrossed -6- LRB093 04120 RLC 04160 b 1 (720 ILCS 5/37.5-25 new) 2 Sec. 37.5-25. Forfeiture hearing. If real property is 3 subject to seizure for felony violations under Section 4.01 4 of the Humane Care for Animals Act or felony violations under 5 Section 26-5 of this Code, upon conviction, the State's 6 Attorney or Attorney General may commence an action by 7 petition in the sentencing court anytime following sentencing 8 of the defendant. The sentencing court shall conduct a 9 hearing to determine whether any property or property 10 interest of the defendant, profits, or proceeds is subject to 11 forfeiture under this Article. At the forfeiture hearing the 12 People have the burden of establishing, by a preponderance of 13 the evidence, that the property or property interest is 14 subject to forfeiture. 15 (1) All property declared forfeited under this 16 Article vests in this State on the date of the commission 17 of the conduct giving rise to forfeiture together with 18 the proceeds of the property after that time. Any such 19 property or proceeds subsequently transferred to any 20 person remain subject to forfeiture and thereafter shall 21 be ordered forfeited unless the transferee claims and 22 establishes in a hearing under the provisions of this 23 Article that the transferee's interest is exempt. 24 (2) If the State does not show by a preponderance 25 of the evidence or a claimant has established by 26 preponderance of evidence that the claimant has an 27 interest that is exempt under this Article, the court 28 shall order the interest in the property returned or 29 conveyed to the claimant and shall order all other 30 property forfeited to the State. If the State does show 31 by a preponderance of the evidence that the property 32 interest is subject to forfeiture, and the claimant does 33 not establish by a preponderance of evidence that the 34 claimant has an interest that is exempt under this HB1089 Engrossed -7- LRB093 04120 RLC 04160 b 1 Article, the court shall order all real property 2 forfeited to the State. 3 (3) A defendant convicted in any criminal 4 proceeding is precluded from later denying the essential 5 allegations of the criminal offense of which the 6 defendant was convicted in any proceeding under this 7 Article regardless of the pendency of an appeal from that 8 conviction. However, evidence of the pendency of an 9 appeal is admissible. 10 (720 ILCS 5/37.5-30 new) 11 Sec. 37.5-30. Exemptions from forfeiture. 12 (a) A property interest is exempt from forfeiture under 13 this Article if its owner or interest holder establishes by a 14 preponderance of evidence that the owner or interest holder: 15 (1) in the case of real property is not legally 16 accountable for the conduct giving rise to the 17 forfeiture, or did not solicit, conspire, or attempt to 18 commit the conduct giving rise to the forfeiture; and 19 (2) had not acquired and did not stand to acquire 20 proceeds from the conduct giving rise to its forfeiture 21 other than as an interest holder in an arms length 22 commercial transaction; and 23 (3) does not hold the property for the benefit of 24 or as a nominee for any person whose conduct gave rise to 25 its forfeiture, and, if the owner or interest holder 26 acquired the interest through any such person, the owner 27 or interest holder acquired it as a bona fide purchaser 28 for value without knowingly taking part in the conduct 29 giving rise to the forfeiture; and 30 (4) that the owner or interest holder acquired the 31 interest: 32 (i) before the commencement of the conduct 33 giving rise to its forfeiture and the person whose HB1089 Engrossed -8- LRB093 04120 RLC 04160 b 1 conduct gave rise to its forfeiture did not have the 2 authority to convey the interest to a bona fide 3 purchaser for value at the time of the conduct; or 4 (ii) after the commencement of the conduct 5 giving rise to its forfeiture, and the owner or 6 interest holder acquired the interest as a 7 mortgagee, secured creditor, lienholder, or bona 8 fide purchaser for value without knowledge of the 9 conduct which gave rise to the forfeiture; and 10 (iii) in the case of real estate, before the 11 filing in the office of the recorder of the county 12 in which the real estate is located of a notice of a 13 lis pendens notice. 14 (5)(A) With respect to a property interest in 15 existence at the time the illegal conduct giving rise to 16 the forfeiture took place, 17 (i) did not know of the conduct giving rise to 18 forfeiture; or 19 (ii) upon learning of the conduct giving rise 20 to the forfeiture, did all that reasonably could be 21 expected under the circumstances to terminate such 22 use of the property. 23 (B)(i) For the purposes of this paragraph (5), 24 ways in which a person may show that he or she did 25 all that reasonably could be expected may include 26 demonstrating that he or she, to the extent 27 permitted by law: 28 (I) gave timely notice to an appropriate 29 law enforcement agency of information that led 30 the person to know the conduct giving rise to a 31 forfeiture would occur or has occurred; and 32 (II) in a timely fashion revoked or made a 33 good faith attempt to revoke permission for 34 those engaging in such conduct to use the HB1089 Engrossed -9- LRB093 04120 RLC 04160 b 1 property or took reasonable actions in 2 consultation with a law enforcement agency to 3 discourage or prevent the illegal use of the 4 property. 5 (ii) A person is not required by this 6 subparagraph to take steps that the person 7 reasonably believes would be likely to subject any 8 person (other than the person whose conduct gave 9 rise to the forfeiture) to physical danger. 10 (b) If the court determines, in accordance with this 11 Section, that an innocent owner has a partial interest in 12 property otherwise subject to forfeiture, or a joint tenancy 13 or tenancy by the entirety in that property, the court may 14 enter an appropriate order: 15 (1) severing the property; 16 (2) transferring the property to the State with a 17 provision that the State compensate the innocent owner to 18 the extent of his or her ownership interest once a final 19 order of forfeiture has been entered and the property has 20 been reduced to liquid assets; or 21 (3) permitting the innocent owner to retain the 22 property subject to a lien in favor of the State to the 23 extent of the forfeitable interest in the property. 24 (c) In this Section, the term "owner": 25 (1) means a person with an ownership interest in 26 the specific property sought to be forfeited, including a 27 leasehold, lien, mortgage, recorded security interest, or 28 valid assignment of an ownership interest; and 29 (2) does not include: 30 (i) a person with only a general unsecured 31 interest in, or claim against, the property or 32 estate of another; 33 (ii) a bailee unless the bailor is identified 34 and the bailee shows a colorable legitimate interest HB1089 Engrossed -10- LRB093 04120 RLC 04160 b 1 in the property seized; or 2 (iii) a nominee who exercises no dominion or 3 control over the property. 4 (720 ILCS 5/37.5-35 new) 5 Sec. 37.5-35. Settlement of claims. Notwithstanding 6 other provisions of this Article, the State's Attorney and a 7 claimant of seized property may enter into an agreed upon 8 settlement concerning the property subject to forfeiture in 9 such an amount and upon such terms as are set out in writing 10 in a settlement agreement. 11 (720 ILCS 5/37.5-40 new) 12 Sec. 37.5-40. Judicial review. If property has been 13 declared forfeited under this Article, any person who has an 14 interest in the property declared forfeited may, within 30 15 days of the effective date of the notice of the declaration 16 of forfeiture, file a claim and cost bond and apply to the 17 court for reconsideration based upon his or her interest in 18 the property. 19 (720 ILCS 5/37.5-45 new) 20 Sec. 37.5-45. Disposal of property. Real property taken 21 or detained under this Section is not subject to replevin, 22 but is deemed to be in the custody of the Director of State 23 Police subject only to the order and judgments of the circuit 24 court having jurisdiction over the forfeiture proceedings and 25 the decisions of the State's Attorney or Attorney General 26 under this Article. 27 (1) When property is forfeited under this Article, 28 the Director of State Police shall sell all such property 29 and shall distribute the proceeds of the sale, together 30 with any moneys forfeited or seized in accordance with 31 paragraph (2). HB1089 Engrossed -11- LRB093 04120 RLC 04160 b 1 (2) All monies and the sale proceeds of all other 2 property forfeited and seized under this Article shall be 3 distributed as follows: 4 (A) 65% shall be distributed to the local, 5 municipal, county, or State law enforcement agency 6 or agencies that conducted or participated in the 7 investigation resulting in the forfeiture. The 8 distributions shall bear a reasonable relationship 9 to the degree of direct participation of the law 10 enforcement agency in the effort resulting in the 11 forfeiture, taking into account the total value of 12 the property forfeited and the total law enforcement 13 effort with respect to the violation of the law upon 14 which the forfeiture is based. 15 (B) 12.5% shall be distributed to the Office 16 of the State's Attorney of the county in which the 17 prosecution resulting in the forfeiture was 18 instituted for use in the enforcement of laws, 19 including animal fighting. 20 (C) 12.5% shall be distributed to the Illinois 21 Department of Agriculture for use of expenses 22 incurred in the investigation, prosecution, and 23 appeal of cases arising under laws governing animal 24 fighting. 25 (D) 10% shall be retained by the Department of 26 State Police for expenses related to the 27 administration and sale of seized and forfeited 28 property. 29 Section 99. Effective date. This Act takes effect upon 30 becoming law.