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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Code of 1961 is amended by changing |
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| Section 17-1b as follows:
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| (720 ILCS 5/17-1b)
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| Sec. 17-lb. State's Attorney's bad check diversion |
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| program.
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| (a) In this Section:
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| "Offender" means a person charged with, or for whom |
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| probable cause
exists to charge the person with, deceptive |
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| practices.
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| "Pretrial diversion" means the decision of a prosecutor to |
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| refer an
offender to a diversion program on condition that the |
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| criminal charges against
the offender will be dismissed after a |
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| specified period of time, or the case
will not be charged, if |
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| the offender successfully completes the program.
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| "Restitution" means all amounts payable to a victim of |
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| deceptive practices
under the bad check diversion program |
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| created under this Section, including
the amount of the check |
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| and any transaction fees payable to a victim as set
forth in |
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| subsection (g)
but does not include amounts
recoverable under |
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| Section 3-806 of the Uniform Commercial Code and Section
17-1a |
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| of this Code.
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| (b) A State's Attorney may create within his or her office |
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| a bad check
diversion program for offenders who agree to |
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| voluntarily participate in the
program instead of undergoing |
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| prosecution. The program may be conducted by the
State's |
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| Attorney or by a private entity under contract with the State's
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| Attorney. If the State's Attorney contracts with a private |
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| entity to perform
any services in operating the program, the |
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| entity shall operate under the
supervision, direction, and |
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| control of the State's Attorney. Any private entity
providing |
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| services under this Section is not a "collection agency" as |
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| that
term is defined under the Collection Agency Act.
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| (c) If an offender is referred to the State's Attorney, the |
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| State's
Attorney may determine whether the offender is |
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| appropriate for acceptance in
the
program. The State's Attorney |
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| may consider, but shall not be limited to
consideration of, the
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| following factors:
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| (1) the amount of the check that was drawn or passed;
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| (2) prior referrals of the offender to the program;
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| (3) whether other charges of deceptive practices are |
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| pending
against the offender;
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| (4) the evidence presented to the State's Attorney |
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| regarding the
facts and circumstances of the incident;
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| (5) the offender's criminal history; and
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| (6) the reason the check was dishonored by the |
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| financial
institution.
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| (d) The bad check diversion program may require an offender |
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| to do one or
more of the following:
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| (i) pay for, at his or her own expense, and |
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| successfully
complete an educational class held by the |
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| State's Attorney or a private
entity under contract with |
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| the State's Attorney;
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| (ii) make full restitution for the offense;
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| (iii) pay a per-check administrative fee as set forth |
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| in this
Section.
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| (e) If an offender is diverted to the program, the State's |
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| Attorney shall
agree in writing not to prosecute the offender |
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| upon the offender's successful
completion of the program |
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| conditions. The State's Attorney's agreement to
divert the |
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| offender shall specify the
offenses that will not be prosecuted |
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| by identifying the checks involved in the
transactions.
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| (f) The State's Attorney, or private entity under contract |
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| with the
State's Attorney, may collect a fee from an offender |
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| diverted to the State's
Attorney's bad check diversion program. |
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| This fee may be deposited in a
bank account maintained by the |
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| State's Attorney for the purpose of
depositing fees and paying |
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| the expenses of the program or for use in the enforcement and |
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| prosecution of criminal laws . The State's
Attorney may require |
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| that the fee be paid directly to a private entity that
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| administers the program under a contract with the State's |
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| Attorney.
The amount of the administrative fees collected by |
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| the State's Attorney
under the program may not exceed $35 per |
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| check. The county board may,
however, by ordinance, increase |
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| the fees allowed by this Section if the
increase is justified |
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| by an acceptable cost study showing that the fees
allowed by |
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| this Section are not sufficient to cover the cost of providing |
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| the
service.
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| (g) (1) The private entity shall be required to maintain |
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| adequate
general
liability insurance of $1,000,000 per |
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| occurrence as well as adequate
coverage for potential loss |
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| resulting from employee dishonesty. The State's
Attorney |
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| may require a surety bond payable to the State's Attorney |
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| if in the
State's Attorney's opinion it is determined that |
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| the private entity is not
adequately insured or funded.
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| (2) (A) Each private entity that has a contract with |
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| the State's
Attorney to conduct a bad check diversion |
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| program shall at all times
maintain a separate bank |
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| account in which all moneys received from the
offenders |
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| participating in the program shall be deposited, |
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| referred to as a
"Trust Account", except that |
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| negotiable instruments received may be
forwarded |
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| directly to a victim of the deceptive practice |
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| committed by the
offender if that procedure is provided |
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| for by a writing executed by the
victim. Moneys |
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| received shall be so deposited within 5 business days
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| after posting to the private entity's books of account.
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| There shall be sufficient funds in the trust account at |
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| all times to
pay the victims the amount due them.
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| (B) The trust account shall be established in a |
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| bank, savings and
loan association, or other |
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| recognized depository which is federally or
State |
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| insured or otherwise secured as defined by rule. If the |
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| account is
interest bearing, the private entity shall |
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| pay to the victim interest
earned on funds on deposit |
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| after the 60th day.
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| (C) Each private entity shall keep on file the name |
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| of the bank,
savings and loan association, or other |
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| recognized depository in which
each trust account is |
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| maintained, the name of each trust account, and
the |
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| names of the persons authorized to withdraw funds from |
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| each account.
The private entity, within 30 days of the |
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| time of a change of
depository or person authorized to |
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| make withdrawal, shall update its
files to reflect that |
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| change.
An examination and audit of a private entity's |
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| trust accounts may be
made by the State's Attorney as |
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| the State's Attorney deems appropriate.
A trust |
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| account financial report shall be submitted annually |
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| on
forms acceptable to the State's Attorney.
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| (3) The State's Attorney may cancel a contract entered |
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| into
with a
private entity under this Section for any one |
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| or any
combination of the following causes:
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| (A) Conviction of the private entity or the |
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| principals of
the private entity of any crime under the |
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| laws of any U.S. jurisdiction
which is a felony, a |
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| misdemeanor an essential element of which is
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| dishonesty, or of any crime which directly relates to |
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| the practice
of the profession.
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| (B) A determination that the private entity has |
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| engaged in conduct
prohibited in item (4).
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| (4) The State's Attorney may determine whether the |
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| private entity has
engaged in the following prohibited |
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| conduct:
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| (A) Using or threatening to use force or violence |
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| to cause
physical harm to an offender, his or her |
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| family, or his or her property.
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| (B) Threatening the seizure, attachment, or sale |
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| of an offender's
property where such action can only be |
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| taken pursuant to court order
without disclosing that |
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| prior court proceedings are required.
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| (C) Disclosing or threatening to disclose |
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| information
adversely affecting an offender's |
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| reputation for creditworthiness with
knowledge the |
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| information is false.
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| (D) Initiating or threatening to initiate |
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| communication with
an offender's employer unless there |
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| has been a default of the payment
of the obligation for |
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| at least 30 days and at least 5 days prior
written |
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| notice, to the last known address of the offender, of |
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| the
intention to communicate with the employer has been |
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| given to the
employee, except as expressly permitted by |
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| law or court order.
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| (E) Communicating with the offender or any member |
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| of the
offender's family at such a time of day or night |
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| and with such
frequency as to constitute harassment of |
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| the offender or any member of
the offender's family. |
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| For purposes of this clause (E) the following
conduct |
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| shall constitute harassment:
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| (i) Communicating with the offender or any |
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| member of his or
her family at any unusual time or |
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| place or a time
or place known or which should be |
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| known to be inconvenient to
the offender. In the |
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| absence of knowledge of circumstances to
the |
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| contrary, a private entity shall assume that the |
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| convenient
time for communicating with a consumer |
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| is after 8 o'clock a.m.
and before 9 o'clock p.m. |
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| local time at the offender's residence.
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| (ii) The threat of publication or publication |
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| of a list of
offenders who allegedly refuse to pay |
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| restitution, except by the State's
Attorney.
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| (iii) The threat of advertisement or |
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| advertisement for sale
of any restitution to |
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| coerce payment of the restitution.
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| (iv) Causing a telephone to ring or engaging |
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| any person in
telephone conversation repeatedly or |
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| continuously with intent
to annoy, abuse, or |
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| harass any person at the called number.
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| (v) Using profane, obscene or abusive language |
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| in
communicating with an offender, his or her |
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| family, or others.
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| (vi) Disclosing or threatening to disclose |
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| information
relating to a offender's case to any |
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| other person except
the victim and appropriate law |
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| enforcement personnel.
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| (vii) Disclosing or threatening to disclose |
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| information
concerning the alleged criminal act |
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| which the private entity knows to
be reasonably |
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| disputed by the offender without disclosing the |
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| fact
that the offender disputes the accusation.
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| (viii) Engaging in any conduct which the |
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| State's Attorney finds was
intended to cause and |
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| did cause mental or physical illness to the
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| offender or his or her family.
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| (ix) Attempting or threatening to enforce a |
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| right or remedy
with knowledge or reason to know |
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| that the right or remedy does not
exist.
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| (x) Except as authorized by the State's |
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| Attorney, using any form of
communication which |
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| simulates legal or
judicial process or which gives |
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| the appearance of being authorized,
issued or |
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| approved by a governmental agency or official or by |
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| an
attorney at law when it is not.
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| (xi) Using any badge,
uniform, or other |
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| indicia of any
governmental agency or official, |
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| except as authorized by law or by the State's
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| Attorney.
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| (xii) Except as authorized by the State's |
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| Attorney, conducting
business
under any name or in |
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| any manner which
suggests or implies that the |
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| private entity is bonded if such
private entity is |
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| or is a branch of or is affiliated with any
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| governmental agency or court if such private |
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| entity is not.
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| (xiii) Misrepresenting the amount of the |
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| restitution alleged
to be owed.
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| (xiv) Except as authorized by the State's |
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| Attorney, representing that
an
existing |
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| restitution amount may be increased
by
the |
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| addition of attorney's fees, investigation fees, |
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| or any other
fees or charges when those fees or |
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| charges may not legally be added
to the existing |
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| restitution.
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| (xv) Except as authorized by the State's |
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| Attorney, representing that
the
private entity is |
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| an attorney at
law or an agent for an attorney if |
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| the entity is not.
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| (xvi) Collecting or attempting to collect any |
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| interest or other
charge or fee in excess of the |
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| actual restitution or claim unless the
interest or |
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| other charge or fee is expressly authorized by the
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| State's Attorney, who shall
determine what |
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| constitutes a reasonable collection fee.
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| (xvii) Communicating or threatening to |
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| communicate with an offender
when the private |
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| entity is informed in writing by an attorney that
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| the attorney represents the offender concerning |
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| the claim, unless
authorized by the attorney. If |
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| the attorney fails to respond within
a reasonable |
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| period of time, the private entity may communicate |
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| with the
offender. The private entity may |
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| communicate with the offender when the
attorney |
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| gives his consent.
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| (xviii) Engaging in dishonorable, unethical, |
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| or unprofessional
conduct of a character likely to |
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| deceive, defraud, or harm the
public.
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| (5) The State's Attorney shall audit the accounts of |
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| the bad check
diversion
program after notice in writing to |
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| the private entity.
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| (6) Any information obtained by a private entity that |
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| has a contract with
the State's Attorney to conduct a bad |
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| check diversion program is confidential
information |
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| between the State's Attorney and the private entity and may |
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| not
be sold or used for any other purpose but may be shared |
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| with other authorized
law enforcement agencies as |
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| determined by the State's Attorney.
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HB0239 Engrossed |
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LRB095 04650 RLC 24708 b |
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| (h) The State's Attorney, or private entity under contract |
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| with the
State's Attorney, shall recover, in addition to the |
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| face amount of the
dishonored check or draft, a transaction fee |
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| to defray the costs and expenses
incurred by a victim who |
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| received a dishonored check that was made or
delivered by the |
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| offender. The face amount of the dishonored check or draft and
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| the transaction fee shall be paid by the State's Attorney or |
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| private entity
under contract with the State's Attorney to the |
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| victim as
restitution for the offense. The amount of the |
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| transaction fee must not
exceed: $25 if the face amount of the |
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| check or draft does not exceed $100;
$30 if the face amount of |
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| the check or draft is greater than $100 but does not
exceed |
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| $250; $35 if the face amount of the check or draft is greater |
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| than
$250 but does not exceed $500; $40 if the face amount of |
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| the
check or draft is greater than $500 but does not exceed |
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| $1,000; and $50 if the
face amount of the check or draft is |
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| greater than $1,000.
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| (i) The offender, if aggrieved by an action of the private
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| entity contracted to operate a bad check diversion program, may |
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| submit a
grievance to
the State's Attorney who may then resolve |
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| the grievance. The private entity
must give notice to the |
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| offender that the grievance procedure is available. The
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| grievance procedure shall be established by the State's |
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| Attorney.
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| (Source: P.A. 93-394, eff. 7-29-03.)
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