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91_SB0731eng SB731 Engrossed LRB9100329RCpc 1 AN ACT to amend the Criminal Code of 1961 by adding 2 Section 17B-0.05 and re-enacting the heading of Article 17B 3 and Sections 17B-1, 17B-5, 17B-10, 17B-15, 17B-20, 17B-25, 4 and 17B-30. 5 Be it enacted by the People of the State of Illinois, 6 represented in the General Assembly: 7 Section 5. The Criminal Code of 1961 is amended by 8 adding Section 17B-0.05 and re-enacting the heading of 9 Article 17B and Sections 17B-1, 17B-5, 17B-10, 17B-15, 10 17B-20, 17B-25, and 17B-30 as follows: 11 (720 ILCS 5/Art. 17B heading) 12 ARTICLE 17B. WIC FRAUD 13 (720 ILCS 5/17B-0.05 new) 14 Sec. 17B-0.05. Re-enactment; findings; purposes. 15 (a) The General Assembly finds and declares that: 16 (1) Section 50-5 of Public Act 88-680, effective 17 January 1, 1995, contained provisions adding the WIC 18 Fraud Article to the Criminal Code of 1961. Section 50-5 19 also contained other provisions. 20 (2) In addition, Public Act 88-680 was entitled "An 21 Act to create a Safe Neighborhoods Law". (i) Article 5 22 was entitled JUVENILE JUSTICE and amended the Juvenile 23 Court Act of 1987. (ii) Article 15 was entitled GANGS 24 and amended various provisions of the Criminal Code of 25 1961 and the Unified Code of Corrections. (iii) Article 26 20 was entitled ALCOHOL ABUSE and amended various 27 provisions of the Illinois Vehicle Code. (iv) Article 25 28 was entitled DRUG ABUSE and amended the Cannabis Control 29 Act and the Illinois Controlled Substances Act. (v) 30 Article 30 was entitled FIREARMS and amended the Criminal SB731 Engrossed -2- LRB9100329RCpc 1 Code of 1961 and the Code of Criminal Procedure of 1963. 2 (vi) Article 35 amended the Criminal Code of 1961, the 3 Rights of Crime Victims and Witnesses Act, and the 4 Unified Code of Corrections. (vii) Article 40 amended 5 the Criminal Code of 1961 to increase the penalty for 6 compelling organization membership of persons. (viii) 7 Article 45 created the Secure Residential Youth Care 8 Facility Licensing Act and amended the State Finance Act, 9 the Juvenile Court Act of 1987, the Unified Code of 10 Corrections, and the Private Correctional Facility 11 Moratorium Act. (ix) Article 50 amended the WIC Vendor 12 Management Act, the Firearm Owners Identification Card 13 Act, the Juvenile Court Act of 1987, the Criminal Code of 14 1961, the Wrongs to Children Act, and the Unified Code of 15 Corrections. 16 (3) On September 22, 1998, the Third District 17 Appellate Court in People v. Dainty, 701 N.E. 2d 118, 18 ruled that Public Act 88-680 violates the single subject 19 clause of the Illinois Constitution (Article IV, Section 20 8 (d)) and was unconstitutional in its entirety. As of 21 the time this amendatory Act of 1999 was prepared, People 22 v. Dainty was still subject to appeal. 23 (4) WIC fraud is a vital concern to the people of 24 this State and the validity of future prosecutions under 25 the WIC fraud provisions of the Criminal Code of 1961 is 26 in grave doubt. 27 (b) It is the purpose of this amendatory Act of 1999 to 28 prevent or minimize any problems relating to prosecutions for 29 WIC fraud that may result from challenges to the 30 constitutional validity of Public Act 88-680 by re-enacting 31 the Sections relating to WIC fraud that were included in 32 Public Act 88-680. 33 (c) This amendatory Act of 1999 re-enacts Article 17B of 34 the Criminal Code of 1961, as it has been amended. This SB731 Engrossed -3- LRB9100329RCpc 1 re-enactment is intended to remove any question as to the 2 validity or content of that Article; it is not intended to 3 supersede any other Public Act that amends the text of a 4 Section as set forth in this amendatory Act of 1999. Except 5 for a grammatical correction in Section 17B-10 and a 6 correction of the Section number to Section 17B-30, the 7 material is shown as existing text (i.e., without 8 underscoring) because, as of the time this amendatory Act of 9 1999 was prepared, People v. Dainty was subject to appeal to 10 the Illinois Supreme Court. 11 (d) The re-enactment by this amendatory Act of 1999 of 12 certain Sections relating to WIC fraud that were enacted by 13 Public Act 88-680 is not intended, and shall not be 14 construed, to imply that Public Act 88-680 is invalid or to 15 limit or impair any legal argument concerning whether those 16 provisions were substantially re-enacted by other Public 17 Acts. 18 (720 ILCS 5/17B-1) 19 Sec. 17B-1. Legislative Intent. Because of the 20 pervasive nature of fraud in the Special Supplemental Food 21 Program for Women, Infants and Children (known as WIC) and 22 the negative effect of that fraud on the People of the State 23 of Illinois and those individuals who need WIC benefits, the 24 General Assembly declares it to be public policy that Special 25 Supplemental Food Program for Women, Infants and Children 26 (WIC) Benefits Fraud be identified and dealt with swiftly and 27 appropriately considering the onerous nature of the crime. 28 (Source: P.A. 88-680, eff. 1-1-95.) 29 (720 ILCS 5/17B-5) 30 Sec. 17B-5. Violations. A person who knowingly (i) 31 uses, acquires, possesses, or transfers Illinois Department 32 of Public Health or Department of Human Services Special SB731 Engrossed -4- LRB9100329RCpc 1 Supplemental Food Program for Women, Infants and Children 2 (WIC) Food Instruments or authorizations to participate in 3 the Illinois Department of Public Health or Department of 4 Human Services Special Supplemental Food Program for Women, 5 Infants and Children (WIC) in any manner not authorized by 6 law or the rules of the Illinois Department of Public Health 7 or Department of Human Services or (ii) alters, uses, 8 acquires, possesses, or transfers altered Illinois Department 9 of Public Health or Department of Human Services Special 10 Supplemental Food Program for Women, Infants and Children 11 (WIC) Food Instruments or authorizations to participate in 12 the Illinois Department of Public Health or Department of 13 Human Services Special Supplemental Food Program for Women, 14 Infants and Children (WIC) is guilty of a violation of this 15 Article and shall be punished as provided in Section 17B-20. 16 (Source: P.A. 88-680, eff. 1-1-95; 89-507, eff. 7-1-97.) 17 (720 ILCS 5/17B-10) 18 Sec. 17B-10. Administrative malfeasance. 19 (a) A person who misappropriates, misuses, or unlawfully 20 withholds or converts to his or her own use or to the use of 21 another any public funds made available for the Illinois 22 Department of Public Health or Department of Human Services 23 Special Supplemental Food Program for Women, Infants and 24 Children (WIC) is guilty of a violation of this Article and 25 shall be punished as provided in Section 17B-20. 26 (b) An official or employee of a State, county, or unit 27 of local government who willfully facilitates, aids, abets, 28 assists, or knowingly participates in a known violation of 29 Section 17B-5, 17B-10, or 17B-15 is subject to disciplinary 30 proceedings under the rules of the applicable Illinois 31 Department or unit of local government. 32 (Source: P.A. 88-680, eff. 1-1-95; 89-8, eff. 3-21-95; 33 89-377, eff. 8-18-95; 89-507, eff. 7-1-97; revised 10-31-98.) SB731 Engrossed -5- LRB9100329RCpc 1 (720 ILCS 5/17B-15) 2 Sec. 17B-15. Unauthorized possession of identification 3 document. Any person who possesses for an unlawful purpose 4 another person's identification document issued by the 5 Illinois Department of Public Health or Department of Human 6 Services is guilty of a Class 4 felony. For purposes of this 7 Section, "identification document" includes, but is not 8 limited to, an authorization to participate in the Illinois 9 Department of Public Health or Department of Human Services 10 Special Supplemental Food Program for Women, Infants and 11 Children (WIC) or a card or other document that identifies a 12 person as being entitled to benefits in the Illinois 13 Department of Public Health or Department of Human Services 14 Special Supplemental Food Program for Women, Infants and 15 Children (WIC). 16 (Source: P.A. 88-680, eff. 1-1-95; 89-507, eff. 7-1-97.) 17 (720 ILCS 5/17B-20) 18 Sec. 17B-20. Penalties. 19 (a) If a person, firm, corporation, association, agency, 20 institution, or other legal entity is found by a court to 21 have engaged in an act, practice, or course of conduct 22 declared unlawful under Sections 17B-5 or 17B-15 of this 23 Article and: 24 (1) the total amount of money involved in the 25 violation, including the monetary value of the Illinois 26 Department of Public Health or Department of Human 27 Services Special Supplemental Food Program for Women, 28 Infants and Children (WIC) Food Instruments and the value 29 of commodities, is less than $150, the violation is a 30 Class A misdemeanor; 31 (2) the total amount of money involved in the 32 violation, including the monetary value of the Illinois 33 Department of Public Health or Department of Human SB731 Engrossed -6- LRB9100329RCpc 1 Services Special Supplemental Food Program for Women, 2 Infants and Children (WIC) Food Instruments and the value 3 of commodities, is $150 or more but less than $1,000, the 4 violation is a Class 4 felony; 5 (3) the total amount of money involved in the 6 violation, including the monetary value of the Illinois 7 Department of Public Health or Department of Human 8 Services Special Supplemental Food Program for Women, 9 Infants and Children (WIC) Food Instruments and the value 10 of commodities, is $1,000 or more but less than $5,000, 11 the violation is a Class 3 felony; 12 (4) the total amount of money involved in the 13 violation, including the monetary value of the Illinois 14 Department of Public Health or Department of Human 15 Services Special Supplemental Food Program for Women, 16 Infants and Children (WIC) Food Instruments and the value 17 of commodities is $5,000 or more but less than $10,000, 18 the violation is a Class 2 felony; or 19 (5) the total amount of money involved in the 20 violation, including the monetary value of Illinois 21 Department of Public Health or Department of Human 22 Services Special Supplemental Food Program for Women, 23 Infants and Children (WIC) Food Instruments and the value 24 of commodities is $10,000 or more, the violation is a 25 Class 1 felony and the defendant shall be permanently 26 ineligible to participate in the Illinois Department of 27 Public Health or Department of Human Services Special 28 Supplemental Food Program for Women, Infants and Children 29 (WIC). 30 The State's Attorney of the County in which the violation 31 of this Article occurred or the Attorney General shall bring 32 actions arising under this Article in the name of the people 33 of the State of Illinois. 34 (b) If a person, firm, corporation, association, agency, SB731 Engrossed -7- LRB9100329RCpc 1 institution, or other legal entity commits a second or 2 subsequent violation of this Article and: 3 (1) the total amount of money involved in the 4 violation, including the monetary value of the Illinois 5 Department of Public Health or Department of Human 6 Services Special Supplemental Food Program for Women, 7 Infants and Children (WIC) Food Instruments and the value 8 of commodities, is less than $150, the violation is a 9 Class 4 felony; 10 (2) the total amount of money involved in the 11 violation, including the monetary value of the Illinois 12 Department of Public Health or Department of Human 13 Services Special Supplemental Food Program for Women, 14 Infants and Children (WIC) Food Instruments and the value 15 of commodities, is $150 or more but less than $1,000, the 16 violation is a Class 3 felony; 17 (3) the total amount of money involved in the 18 violation, including the monetary value of the Illinois 19 Department of Public Health or Department of Human 20 Services Special Supplemental Food Program for Women, 21 Infants and Children (WIC) Food Instruments and the value 22 of commodities, is $1,000 or more but less than $5,000, 23 the violation is a Class 2 felony; or 24 (4) the total amount of money involved in the 25 violation, including the monetary value of the Illinois 26 Department of Public Health or Department of Human 27 Services Special Supplemental Food Program for Women, 28 Infants and Children (WIC) Food Instruments and the value 29 of commodities, is $5,000 or more but less than $10,000, 30 the violation is a Class 1 felony. 31 (c) For purposes of determining the classification of 32 offense under this Section, all of the money received as a 33 result of the unlawful act, practice, or course of conduct, 34 including the value of any WIC Food Instruments, shall be SB731 Engrossed -8- LRB9100329RCpc 1 aggregated. 2 (Source: P.A. 88-680, eff. 1-1-95; 89-8, eff. 3-21-95; 3 89-507, eff. 7-1-97.) 4 (720 ILCS 5/17B-25) 5 Sec. 17B-25. Forfeiture. 6 (a) A person who commits a felony violation of this 7 Article shall forfeit, according to this Section, (i) any 8 moneys, profits, or proceeds the person acquired, in whole or 9 in part, as a result of committing the violation and (ii) any 10 property or interest in property that the sentencing court 11 determines the person acquired, in whole or in part, as a 12 result of committing the violation or the person maintained 13 or used, in whole or in part, to facilitate, directly or 14 indirectly, the commission of the violation. The person shall 15 forfeit any interest in, securities of claim against, or 16 contractual right of any kind that affords the person a 17 source of influence over, any enterprise that the person has 18 established, operated, controlled, conducted, or participated 19 in conducting, if the person's relationship to or connection 20 with the interest, security of claim, or contractual right, 21 directly or indirectly, in whole or in part, is traceable to 22 any thing or benefit that the person has obtained or acquired 23 as a result of a felony violation of this Article. 24 (b) The following items are subject to forfeiture: 25 (1) All moneys, things of value, books, records, 26 and research products and materials that are used or 27 intended to be used in committing a felony violation of 28 this Article. 29 (2) Everything of value furnished, or intended to 30 be furnished, in exchange for a substance in violation of 31 this Article, all proceeds traceable to that exchange, 32 and all moneys, negotiable instruments, and securities 33 used or intended to be used to commit or in any manner to SB731 Engrossed -9- LRB9100329RCpc 1 facilitate the commission of a felony violation of this 2 Article. 3 (3) All real property, including any right, title, 4 and interest (including, but not limited to, any 5 leasehold interest or the beneficial interest in a land 6 trust) in the whole of any lot or tract of land and any 7 appurtenances or improvements, that is used or intended 8 to be used, in any manner or part, to commit or in any 9 manner to facilitate the commission of a felony violation 10 of this Article or that is the proceeds of any act that 11 constitutes a felony violation of this Article. 12 (c) Property subject to forfeiture under this Article 13 may be seized by the Director of State Police or any local 14 law enforcement agency upon process or seizure warrant issued 15 by any court having jurisdiction over the property. The 16 Director or a local law enforcement agency may seize property 17 under this Section without process under any of the following 18 circumstances: 19 (1) If the seizure is incident to inspection under 20 an administrative inspection warrant. 21 (2) If the property subject to seizure has been the 22 subject of a prior judgment in favor of the State in a 23 criminal proceeding or in an injunction or forfeiture 24 proceeding under this Article. 25 (3) If there is probable cause to believe that the 26 property is directly or indirectly dangerous to health or 27 safety. 28 (4) If there is probable cause to believe that the 29 property is subject to forfeiture under this Article and 30 the property is seized under circumstances in which a 31 warrantless seizure or arrest would be reasonable. 32 (5) In accordance with the Code of Criminal 33 Procedure of 1963. 34 (d) Proceedings instituted pursuant to this Section SB731 Engrossed -10- LRB9100329RCpc 1 shall be subject to and conducted in accordance with the 2 procedures set forth in this subsection. 3 The sentencing court, on petition by the Attorney General 4 or State's Attorney at any time following sentencing of the 5 defendant, shall conduct a hearing to determine whether any 6 property or property interest of the defendant is subject to 7 forfeiture under this Section. At the forfeiture hearing the 8 People have the burden of establishing, by a preponderance of 9 the evidence, that the property or property interest is 10 subject to forfeiture. 11 In an action brought by the People of the State of 12 Illinois under this Section, in which a restraining order, 13 injunction, prohibition, or other action in connection with 14 any property or interest subject to forfeiture under this 15 Section is sought, the circuit court presiding over the trial 16 of the person charged with a felony violation of this Article 17 shall first determine whether there is probable cause to 18 believe that the person so charged has committed an offense 19 under this Article and whether the property or interest is 20 subject to forfeiture under this Section. To make that 21 determination, before entering an order in connection with 22 that property or interest, the court shall conduct a hearing 23 without a jury, at which the People must establish that there 24 is (i) probable cause that the person charged committed a 25 felony offense under this Article and (ii) probable cause 26 that property or interest may be subject to forfeiture under 27 this Section. The hearing may be conducted simultaneously 28 with a preliminary hearing, if the prosecution is commenced 29 by information or complaint, or by motion of the People at 30 any stage in the proceedings. The court may accept, at a 31 preliminary hearing, (i) the filing of an information 32 charging that the defendant committed a felony offense under 33 this Article (ii) the return of an indictment by a grand jury 34 charging that the defendant committed a felony offense under SB731 Engrossed -11- LRB9100329RCpc 1 this Article as sufficient evidence of probable cause that 2 the person committed the offense. 3 Upon making finding of probable cause, the circuit court 4 shall enter a restraining order, injunction, or prohibition 5 or shall take other action in connection with the property or 6 other interest subject to forfeiture under this Article as is 7 necessary to insure that the property is not removed from the 8 jurisdiction of the court, concealed, destroyed, or otherwise 9 disposed of by the owner of that property or interest before 10 a forfeiture hearing under this subsection. The Attorney 11 General or State's Attorney shall file a certified copy of 12 the restraining order, injunction, or other prohibition with 13 the recorder or registrar of titles of each county in which 14 the property may be located. No injunction, restraining 15 order, or other prohibition issued under this Section shall 16 affect the rights of any bonafide purchaser, mortgagee, 17 judgment creditor, or other lien holder that arose before the 18 date the certified copy is filed. 19 The court may at any time, on verified petition by the 20 defendant, conduct a hearing to determine whether all or any 21 portion of the property or interest, which the court 22 previously determined to be subject to forfeiture or subject 23 to any restraining order, injunction, prohibition, or other 24 action, should be released. The court may in its discretion 25 release the property to the defendant for good cause shown. 26 Upon conviction of a person for a felony violation of 27 this Article, the court shall authorize the Director or State 28 Police to seize any property or other interest declared 29 forfeited under this Section on terms and conditions the 30 court deems proper. 31 (e) Property taken or detained under this Section shall 32 not be subject to replevin, but is deemed to be in the 33 custody of the Director subject only to the order and 34 judgments of the circuit court having jurisdiction over the SB731 Engrossed -12- LRB9100329RCpc 1 forfeiture proceedings and the decisions of the Attorney 2 General or State's Attorney under this Article. When 3 property is seized under this Article, the seizing agency 4 shall promptly conduct an inventory of the seized property 5 and estimate the property's value and shall forward a copy of 6 the estimate of the property's value to the Director of State 7 Police. Upon receiving the notice of seizure, the Director 8 may do any of the following: 9 (1) Place the property under seal. 10 (2) Remove the property to a place designated by 11 the Director. 12 (3) Keep the property in the possession of the 13 seizing agency. 14 (4) Remove the property to a storage area for 15 safekeeping or, if the property is a negotiable 16 instrument or money and is not needed for evidentiary 17 purposes, deposit it in an interest bearing account. 18 (5) Place the property under constructive seizure 19 by posting notice of the pending forfeiture on it, by 20 giving notice of the pending forfeiture to its owners and 21 interest holders, or by filing a notice of the pending 22 forfeiture in any appropriate public record relating to 23 the property. 24 (6) Provide for another agency or custodian, 25 including an owner, secured party, or lienholder, to take 26 custody of the property on terms and conditions set by 27 the Director. 28 (f) When property is forfeited under this Article the 29 Director of State Police shall sell the property unless the 30 property is required by law to be destroyed or is harmful to 31 the public. The Director shall distribute the proceeds of 32 the sale, together with any moneys forfeited or seized, in 33 accordance with subsection (g). On the application of the 34 seizing agency or prosecutor who was responsible for the SB731 Engrossed -13- LRB9100329RCpc 1 investigation, arrest, and prosecution that lead to the 2 forfeiture, however, the Director may return any item of 3 forfeited property to the seizing agency or prosecutor for 4 official use in the enforcement of laws relating to this 5 Article if the agency or prosecutor can demonstrate that the 6 item requested would be useful to the agency or prosecutor in 7 their enforcement efforts. When any real property returned 8 to the seizing agency is sold by the agency or its unit of 9 government, the proceeds of the sale shall be delivered to 10 the Director and distributed in accordance with subsection 11 (g). 12 (g) Except as provided in subsection (f), all moneys 13 from penalties and the proceeds of sale of all property 14 forfeited and seized under this Article shall be distributed 15 to the WIC program administered by the Illinois Department of 16 Human Services. 17 (Source: P.A. 88-680, eff. 1-1-95; 89-507, eff. 7-1-97.) 18 (720 ILCS 5/17B-30) 19 Sec. 17B-30.30.Future participation in the WIC 20 program. A person who has been convicted of a felony 21 violation of this Article shall be prohibited from 22 participating as a WIC vendor for a minimum period of 3 years 23 following conviction and until the total amount of money 24 involved in the violation, including the value of WIC Food 25 Instruments, is repaid to the WIC program. This prohibition 26 shall extend to any person with management responsibility in 27 a firm, corporation, association, agency, institution, or 28 other legal entity that has been convicted of a violation of 29 this Article and to an officer or person owning, directly or 30 indirectly, 5% or more of the shares of stock or other 31 evidences of ownership in a corporate vendor. 32 (Source: P.A. 88-680, eff. 1-1-95.) SB731 Engrossed -14- LRB9100329RCpc 1 Section 99. Effective date. This Act takes effect upon 2 becoming law.