Full Text of SB3752 97th General Assembly
SB3752sam001 97TH GENERAL ASSEMBLY | Sen. Emil Jones, III Filed: 3/1/2012
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| 1 | | AMENDMENT TO SENATE BILL 3752
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3752 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Check Cashing Act is amended by adding | 5 | | Sections 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, | 6 | | 75, and 80 as follows: | 7 | | (815 ILCS 315/5 new) | 8 | | Sec. 5. Purpose. The purpose of this Act is to protect | 9 | | consumers who cash checks at retail businesses that provide | 10 | | check cashing services. This Act shall be construed as a | 11 | | consumer protection law for all purposes. This Act shall be | 12 | | liberally construed to effectuate its purpose. | 13 | | (815 ILCS 315/10 new) | 14 | | Sec. 10. Definitions. As used in this Act: | 15 | | "Cash" means legal tender of the United States. |
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| 1 | | "Check" means a check, draft, money order, traveler's | 2 | | check, or negotiable instrument as defined by Article 3 of the | 3 | | Uniform Commercial Code. | 4 | | "Check casher" means a merchant, including any affiliate or | 5 | | subsidiary of a merchant that engages in the check cashing | 6 | | business. | 7 | | "Check cashing business" means the business of converting | 8 | | checks, drafts, money orders, traveler's checks, or other | 9 | | payment instruments to cash for a fee. "Check cashing business" | 10 | | does not include any transaction in which a customer presents a | 11 | | check for the exact amount of any purchase. | 12 | | "Consumer" means any natural person who, individually or | 13 | | jointly with another consumer, cashes a check. | 14 | | "Department" means the Department of Financial and | 15 | | Professional Regulation. | 16 | | "Incidental" means that in the course of a merchant's | 17 | | business, at each location, the merchant's check fee income is | 18 | | less than 20% of gross sales. | 19 | | "Location" means a place of business at which activity | 20 | | regulated by this Act occurs. | 21 | | "Person" means an individual, partnership, limited | 22 | | liability company, unincorporated association, corporation, or | 23 | | other legal entity. | 24 | | "Merchant" means a person, firm, association, partnership, | 25 | | or corporation primarily engaged in the business of selling | 26 | | tangible personal property at retail. |
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| 1 | | "Secretary" means the Secretary of Financial and | 2 | | Professional Regulation. | 3 | | (815 ILCS 315/15 new) | 4 | | Sec. 15. Engaging in the check cashing business. A merchant | 5 | | may engage in the check cashing business only if it is | 6 | | incidental to the business of selling tangible personal | 7 | | property at retail. However, "check cashing business" does not | 8 | | include any transaction in which a customer presents a check | 9 | | for the exact amount of any purchase. The fees charged for | 10 | | cashing a check shall not exceed the greater of $0.50 or 1% of | 11 | | the face value of the check cashed. No license shall be | 12 | | required as a condition for providing such services. This Act | 13 | | does not affect the applicability of Sections 2 and 29 of the | 14 | | Currency Exchange Act to any activity of a merchant that is not | 15 | | expressly authorized by this Act. | 16 | | (815 ILCS 315/20 new) | 17 | | Sec. 20. Applicability. | 18 | | (a) Except as otherwise provided in this Section, this Act | 19 | | applies to any check casher that engages or offers to engage in | 20 | | the check cashing business for a fee to Illinois consumers.
| 21 | | Anyone not a check casher, except as provided in this Section, | 22 | | may not cash checks for a fee. | 23 | | (b) The provisions of this Act apply to any person or | 24 | | entity that seeks to evade its applicability by any device, |
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| 1 | | subterfuge, or pretense whatsoever. | 2 | | (c) This Act does not apply to any bank holding company, | 3 | | financial holding company, bank, savings bank, savings and loan | 4 | | association, credit union, or trust company, or any subsidiary | 5 | | or affiliate thereof, that is authorized to do business under | 6 | | the laws of this State or of the United States. | 7 | | (d) A check casher that is an agent for a bank, savings | 8 | | bank, savings and loan association, or credit union shall be | 9 | | subject to all of the provisions of this Act. | 10 | | (e) Currency exchanges licensed pursuant to the Currency | 11 | | Exchange Act and in compliance with all relevant State and | 12 | | federal rules and regulations are exempt from the provisions of | 13 | | this Act. | 14 | | (815 ILCS 315/25 new) | 15 | | Sec. 25. Money received by the Department. All moneys | 16 | | received by the Department under this Act shall be deposited in | 17 | | the Financial Institutions Fund created under Section 6z-26 of | 18 | | the State Finance Act. | 19 | | (815 ILCS 315/30 new) | 20 | | Sec. 30. Permitted fees. | 21 | | (a) The fees charged by a check casher may not exceed the | 22 | | greater of $0.50 or 1% of the face value of the check cashed. | 23 | | No check casher shall charge or collect any sum for cashing a | 24 | | check in excess of the fees allowed by this Act. If there are |
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| 1 | | insufficient funds to cover a check, a check casher may charge | 2 | | a fee not to exceed $25. Only one such fee may be collected by | 3 | | the check casher per check. | 4 | | (b) The schedule of fees and charges permitted under this | 5 | | Section shall be conspicuously and continuously posted in at | 6 | | least 14-point font in English and the dominant languages | 7 | | spoken in each check casher's location. | 8 | | (815 ILCS 315/35 new) | 9 | | Sec. 35. Proceeds. A check casher shall issue the proceeds | 10 | | of a check to a consumer in cash or cash equivalent. No check | 11 | | casher shall issue proceeds of a check in an amount other than | 12 | | the face value of the check, except for the deduction of check | 13 | | cashing fees charged pursuant to this Act. | 14 | | (815 ILCS 315/40 new) | 15 | | Sec. 40. Deposits. Before a check casher deposits, with any | 16 | | banking or other financial institution, a check cashed by the | 17 | | check casher, the check must be endorsed with the name under | 18 | | which the check casher is doing business. | 19 | | (815 ILCS 315/45 new) | 20 | | Sec. 45. Reporting requirements. A check casher shall | 21 | | submit to the Secretary, or the Secretary's designee, any | 22 | | suspicious activity reports or currency transaction reports as | 23 | | are required to be submitted to federal authorities pursuant to |
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| 1 | | the federal Bank Secrecy Act, and regulations and | 2 | | administrative orders related thereto, as amended, within the | 3 | | periods of time as required by the federal Bank Secrecy Act and | 4 | | regulations. A check casher may submit a copy of any report to | 5 | | the Secretary, or Secretary's designee, that is filed with that | 6 | | federal authority. The Secretary may adopt rules or require | 7 | | additional reports as he or she deems necessary to ensure | 8 | | effective enforcement of this Section. | 9 | | (815 ILCS 315/50 new) | 10 | | Sec. 50. Forged checks. A check casher shall post in a | 11 | | conspicuous location, clearly visible to all patrons, a | 12 | | statement printed in at least 14-point font in plain language, | 13 | | in English and in the dominant languages spoken in each check | 14 | | casher's location, informing the public that cashing a forged | 15 | | check is illegal and those who knowingly cash forged checks | 16 | | will be prosecuted pursuant to the applicable provisions of the | 17 | | Criminal Code of 1961. | 18 | | (815 ILCS 315/55 new) | 19 | | Sec. 55. Examination of check cashers; records. | 20 | | (a) A check casher shall keep and use books, accounts, and | 21 | | records that will enable the Secretary to determine whether the | 22 | | check casher is complying with the provisions of this Act and | 23 | | maintain any other records as required by the Secretary. Check | 24 | | cashers shall preserve their books, accounts, and records for 5 |
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| 1 | | years from the date of each transaction. | 2 | | (b) For the purpose of discovering violations of this Act | 3 | | or securing information lawfully required in this Section, the | 4 | | Department may at any time, and as often as may be determined, | 5 | | investigate the check casher's books, accounts, records, | 6 | | files, and any other document related to the check casher's | 7 | | check cashing business activities. The Secretary and his or her | 8 | | designee shall have free access to the offices and places of | 9 | | business, books, accounts, papers, records, files, safes, and | 10 | | vaults of all check cashers. | 11 | | (c) Confidentiality. All information collected by the | 12 | | Department in the course of an examination or investigation of | 13 | | a check casher including, but not limited to, any complaint | 14 | | against a check casher filed with the Department and | 15 | | information collected to investigate any such complaint, shall | 16 | | be maintained for the confidential use of the Department and | 17 | | may not be disclosed. The Department may not disclose such | 18 | | information to anyone other than law enforcement officials, | 19 | | other regulatory agencies that have an appropriate regulatory | 20 | | interest as determined by the Secretary, or a party presenting | 21 | | a lawful subpoena to the Department. Information disclosed to a | 22 | | federal, State, county, or local law enforcement agency may not | 23 | | be disclosed by the agency for any purpose to any other agency | 24 | | or person. A formal complaint filed against a check casher by | 25 | | the Department or any order issued by the Department against a | 26 | | check casher shall be a public record, except as otherwise |
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| 1 | | prohibited by law. | 2 | | (815 ILCS 315/60 new) | 3 | | Sec. 60. Prohibited acts. A check casher may not commit, or | 4 | | have committed on behalf of the check casher, any of the | 5 | | following acts: | 6 | | (1) Using any device or agreement that would have the | 7 | | effect of charging or collecting more fees or charges than | 8 | | allowed by this Act, including, but not limited to, entering | 9 | | into a different type of transaction with the consumer. | 10 | | (2) Engaging in unfair, deceptive, or fraudulent practices | 11 | | in the cashing of a check. | 12 | | (3) Using or causing to be published or disseminated any | 13 | | advertising communication that contains false, misleading, or | 14 | | deceptive statements or representations. No check casher may | 15 | | advertise in any manner so as to indicate or imply that its | 16 | | rates or charges are in any way recommended, approved, set, or | 17 | | established by the State government or by this Act. | 18 | | (4) Engaging in the business of making loans of money, | 19 | | discounting notes, bills of exchange, or other evidences of | 20 | | debt, or accepting deposits or bailments of money or other | 21 | | items except as provided by this Act. | 22 | | (5) Extending credit. | 23 | | (6) Using or attempting to use the check provided by the | 24 | | consumer as collateral for a transaction unrelated to a | 25 | | transaction authorized by this Act. |
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| 1 | | (7) Charging any fees or charges other than those | 2 | | specifically authorized by this Act or under the Uniform | 3 | | Commercial Code. | 4 | | (8) Threatening to take any action against a consumer that | 5 | | is prohibited by this Act. | 6 | | (815 ILCS 315/65 new) | 7 | | Sec. 65. Enforcement and remedies. | 8 | | (a) The remedies provided in this Act are cumulative and | 9 | | apply to persons or entities subject to this Act. | 10 | | (b) Any material violation of this Act, including the | 11 | | commission of an act prohibited under Section 60, constitutes a | 12 | | violation of the Consumer Fraud and Deceptive Business | 13 | | Practices Act. | 14 | | (c) Subject to the Illinois Administrative Procedure Act, | 15 | | the Secretary may hold hearings, make findings of fact and | 16 | | conclusions of law, issue cease and desist orders, issue fines | 17 | | of up to $10,000 per violation, and refer the matter to the | 18 | | appropriate law enforcement agency for prosecution under this | 19 | | Act. All proceedings shall be open to the public. | 20 | | (d) The Secretary may issue a cease and desist order to any | 21 | | check casher when in the opinion of the Secretary the check | 22 | | casher is violating or is about to violate any provision of | 23 | | this Act or any rule or requirement imposed in writing by the | 24 | | Department as a condition of granting any authorization | 25 | | permitted by this Act. The cease and desist order permitted by |
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| 1 | | this subsection (d) is effective as of the date of service and | 2 | | may be issued prior to a hearing. The Secretary shall serve | 3 | | notice of his or her action, including, but not limited to, a | 4 | | statement of the reasons for the action, either personally or | 5 | | by certified mail, return receipt requested. Service by | 6 | | certified mail shall be deemed completed when the notice is | 7 | | deposited in the U.S. Mail. Within 10 days of service of the | 8 | | cease and desist order, the check casher may request, in | 9 | | writing, a hearing. | 10 | | If it is determined that the Secretary had the authority to | 11 | | issue the cease and desist order, he or she may issue such | 12 | | orders as may be reasonably necessary to correct, eliminate, or | 13 | | remedy the conduct. The powers vested in the Secretary by this | 14 | | subsection (d) are in addition to any and all other powers and | 15 | | remedies vested in the Secretary by law, and nothing in this | 16 | | subsection (d) shall be construed as requiring that the | 17 | | Secretary shall employ the power conferred in this subsection | 18 | | instead of or as a condition precedent to the exercise of any | 19 | | other power or remedy vested in the Secretary. | 20 | | (e) The Secretary may, after 10 days' notice by registered | 21 | | mail to the check casher at the check casher's business address | 22 | | stating the contemplated action and in general the grounds | 23 | | therefor, fine the check casher an amount not exceeding $10,000 | 24 | | per violation if he or she finds that the check casher has | 25 | | failed to comply with any provision of this Act or any order, | 26 | | decision, finding, rule, regulation, or direction of the |
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| 1 | | Secretary lawfully made pursuant to the authority of this Act. | 2 | | The Secretary may fine only the particular location with | 3 | | respect to which grounds for the fine occur or exist, but if | 4 | | the Secretary finds that grounds for the fine are of general | 5 | | application to all locations or to more than one location of | 6 | | the check casher, the Secretary may fine every check casher's | 7 | | location to which the grounds apply. | 8 | | An order assessing a fine shall take effect upon service of | 9 | | the order unless the check casher requests a hearing within 10 | 10 | | days of service of the order pursuant to this Section. In the | 11 | | event a hearing is requested, the order shall be stayed until a | 12 | | final administrative order is entered. | 13 | | The hearing shall be held at the time and place designated | 14 | | by the Secretary. The Secretary and any administrative law | 15 | | judge designated by him or her shall have the power to | 16 | | administer oaths and affirmations, subpoena witnesses and | 17 | | compel their attendance, take evidence, and require the | 18 | | production of books, papers, correspondence, and other records | 19 | | or information that he or she considers relevant or material to | 20 | | the inquiry. | 21 | | (f) The costs of administrative hearings conducted | 22 | | pursuant to this Section shall be paid by the check casher. | 23 | | (815 ILCS 315/70 new) | 24 | | Sec. 70. Rulemaking. The Department may make and enforce | 25 | | such reasonable rules, regulations, directions, orders, |
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| 1 | | decisions, and findings as the execution and enforcement of the | 2 | | provisions of this Act require, and as are not inconsistent | 3 | | therewith. All rules, regulations, and directions of a general | 4 | | character shall be made available to all check cashers in | 5 | | electronic form. | 6 | | (815 ILCS 315/75 new) | 7 | | Sec. 75. Judicial review. All final administrative | 8 | | decisions of the Department under this Act are subject to | 9 | | judicial review pursuant to the provisions of the | 10 | | Administrative Review Law and any rules adopted pursuant | 11 | | thereto. | 12 | | (815 ILCS 315/80 new) | 13 | | Sec. 80. No waivers. There shall be no waiver of any | 14 | | provision of this Act.
| 15 | | (815 ILCS 315/1 rep.)
| 16 | | (815 ILCS 315/2 rep.)
| 17 | | Section 900. The Check Cashing Act is amended by repealing | 18 | | Sections 1 and 2. | 19 | | Section 910. The Consumer Fraud and Deceptive Business | 20 | | Practices Act is amended by changing Section 2Z as follows:
| 21 | | (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
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| 1 | | Sec. 2Z. Violations of other Acts. Any person who knowingly | 2 | | violates
the Automotive Repair Act, the Automotive Collision | 3 | | Repair Act,
the Home Repair and Remodeling Act,
the Dance | 4 | | Studio Act,
the Physical Fitness Services Act,
the Hearing | 5 | | Instrument Consumer Protection Act,
the Illinois Union Label | 6 | | Act,
the Job Referral and Job Listing Services Consumer | 7 | | Protection Act,
the Travel Promotion Consumer Protection Act,
| 8 | | the Credit Services Organizations Act,
the Automatic Telephone | 9 | | Dialers Act,
the Pay-Per-Call Services Consumer Protection | 10 | | Act,
the Telephone Solicitations Act,
the Illinois Funeral or | 11 | | Burial Funds Act,
the Cemetery Oversight Act, the Cemetery Care | 12 | | Act,
the Safe and Hygienic Bed Act,
the Pre-Need Cemetery Sales | 13 | | Act,
the High Risk Home Loan Act, the Payday Loan Reform Act, | 14 | | the Mortgage Rescue Fraud Act, subsection (a) or (b) of Section | 15 | | 3-10 of the
Cigarette Tax Act, subsection
(a) or (b) of Section | 16 | | 3-10 of the Cigarette Use Tax Act, the Electronic
Mail Act, the | 17 | | Internet Caller Identification Act, paragraph (6)
of
| 18 | | subsection (k) of Section 6-305 of the Illinois Vehicle Code, | 19 | | Section 11-1431, 18d-115, 18d-120, 18d-125, 18d-135, 18d-150, | 20 | | or 18d-153 of the Illinois Vehicle Code, Article 3 of the | 21 | | Residential Real Property Disclosure Act, the Automatic | 22 | | Contract Renewal Act, the Check Cashing Act, or the Personal | 23 | | Information Protection Act commits an unlawful practice within | 24 | | the meaning of this Act.
| 25 | | (Source: P.A. 96-863, eff. 1-19-10; 96-1369, eff. 1-1-11; | 26 | | 96-1376, eff. 7-29-10; 97-333, eff. 8-12-11.) |
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| 1 | | Section 996. Severability. The provisions of this Act are | 2 | | severable under Section 1.31 of the Statute on Statutes. | 3 | | Section 999. Effective date. This Act takes effect 180 days | 4 | | after becoming law.".
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