SB1961

SECTION 1. The legislature finds that bail and bail bonding agents provide an extraordinarily valuable service to law enforcement and accused persons alike. The bail clause of the eighth amendment of the United States Constitution embodies the long-standing Anglo-American tradition that favors pretrial release of accused persons. Pretrial release on bail frees up crowded jail space and permits defendants to participate more fully in their defense. Bail bonding agents, backed by surety insurance companies, make possible the pretrial release of more than two million defendants annually, at no expense to taxpayers, while providing assurances that people charged with crimes will appear as scheduled to answer those charges.

The legislature finds that persons authorized to apprehend bail fugitives have very broad common law powers to arrest a person. To protect against abuses, many states have enacted laws regulating the conduct of persons who apprehend bail fugitives. Four states have banned the practice outright, twelve others require licenses, and others restrict certain types of conduct.

The purpose of this Act is to:

(1) Require a bail bonding agent to be licensed;

(2) Require the director of commerce and consumer affairs to adopt rules for the process and procedure of obtaining a bail bonding agent license;

(3) Establish prohibited acts of bail bonding agents and provide for civil and criminal penalties;

(4) Require bail fugitive recovery persons to register with the attorney general and undergo a background check; and

(5) Require the director of commerce and consumer affairs to adopt rules to regulate compensated sureties.

SECTION 2. Chapter 804, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . Bail fugitive recovery

§804-A Definitions. As used in this part, unless the context otherwise requires:

"Bail bonding agent" or "bonding agent" means any person who furnishes bail for compensation in any court in this State and who is appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings and who is other than a full-time salaried officer or employee of an insurer or a person who pledges United States currency, a United States postal money order, a cashier's check, or other property as security for a bail bond in connection with a judicial proceeding, whether for compensation or otherwise as defined under section 431:1-210.

"Bail fugitive" means a defendant in a pending criminal case who has been released from custody under a financially secured appearance, cash, or other bond and has had that bond declared forfeited, or a defendant in a pending criminal case who has violated a bond condition whereby apprehension and re-incarceration are permitted.

"Bail fugitive recovery person" means:

(1) A person who is provided written authorization by the bail agent of depositor of bail, and who is contracted to investigate, survey, locate, and arrest a bail fugitive for surrender to the appropriate court, correctional facility, or law enforcement agency; or

(2) A person who is employed to assist a bail agent or depositor of bail to investigate, survey, locate, and arrest a bail fugitive for surrender to the appropriate court, correctional facility, or law enforcement agency.

"Bail insurance company" means an insurer engaged in the business of writing bail appearance bonds through bonding agents and is subject to regulation by the insurance commissioner of the department of commerce and consumer affairs.

"Bail recovery" means actions taken by a person other than a law enforcement officer to apprehend an individual or take an individual into custody because of the failure of the individual to comply with bail bond requirements.

"Compensated surety" means any person in the business of writing bail appearance bonds who is subject to regulation by the director of commerce and consumer affairs.

"Depositor of bail" means a person or entity that has deposited money or bonds to secure the release of a person charged with a crime or offense.

"Law enforcement officer" has the same meaning as provided in section 710-1000.

"On the board" means that the name of a compensated surety has been publicly posted or disseminated by a court as being ineligible to write bail bonds.

§804-B Bail fugitive apprehension; qualifications. (a) No person, other than a law enforcement officer, shall be authorized to apprehend or arrest a bail fugitive unless the person is a:

(1) Bail agent;

(2) Depositor of bail;

(3) Private investigator licensed under chapter 463;

(4) Bail fugitive recovery person who:

(A) Is at least eighteen years old;

(B) Has not been convicted of a felony within the last ten years;

(D) Has submitted to finger printing and a background check as required by section 804-E.

(b) All persons authorized under this section shall comply with all laws while apprehending or arresting a bail fugitive.

§804-C Bail fugitive recovery person; documentation required. (a) Notwithstanding the requirements of section 804‑B(a)(4), a bail fugitive recovery person shall be required to have in the person's possession proper documentation of authority to apprehend or arrest a bail fugitive issued by the bail bonding agent or depositor of bail. Documentation of authority shall include:

(1) The name of the bail fugitive recovery person, and any alias, if applicable;

(2) The principle business address of the bail fugitive recovery person; and

(3) The name and principle business address of the bail agency, compensated surety, or other party with whom the bail fugitive recovery person has a contract to apprehend or arrest the bail fugitive.

(b) At the time of surrendering the bail fugitive to the custody of any sheriff, chief of police, or any authorized subordinate, the bail fugitive recovery person shall provide a certified copy of the bond that was posted on behalf of the bail fugitive being surrendered.

(c) Nothing in this section shall require notice of exoneration of the surety when the bail fugitive is surrendered in open court.

§804-D Prohibited acts. (a) A person authorized under section 804-B to apprehend a bail fugitive shall not represent to a bail fugitive that they are a law enforcement officer.

(b) Nothing in this section shall prohibit a person authorized under section 804-B from wearing a uniform, bulletproof vest, badge, or other identification; provided that the bulletproof vest, badge, or other identification is clearly marked "bail enforcement" or "bounty hunter."

§804-E Bail fugitive recovery persons; background checks. (a) This section shall be administered by the attorney general, who may adopt rules pursuant to chapter 91 to effectuate the purpose of this section.

(b) Any person who wishes to be employed by a bail bonding agent to perform bail recovery services shall have their fingerprints taken by a local law enforcement agency for the purposes of obtaining a background check. The person shall submit payment by certified check or money order for the fingerprints and for the background check at the time the fingerprints are taken. The law enforcement agency taking the fingerprints pursuant to this section shall turn the fingerprints over to the attorney general, along with any payment rendered.

(c) Upon receipt of the fingerprints and the payment required by subsection (b), the attorney general shall conduct a background check for the purpose of determining whether the individual has been convicted of or pled guilty or nolo contendere to any felony under federal or state law during the previous ten years. The attorney general shall establish and maintain files regarding the criminal background checks of all persons seeking to provide bail recovery services.

(d) The attorney general shall accept inquiries from bail bonding agents regarding criminal background checks of persons who have submitted fingerprints pursuant to subsection (b). The attorney general shall advise the bail bonding agent whether a background check has been completed and the results of any completed background check. The attorney general may charge a fee to any bail bonding agent requesting information pursuant to this section.

(e) Prior to hiring, contracting with, or paying any compensation to any person other than another bail bonding agent for bail recovery services, a bail bonding agent shall:

(1) Contact the attorney general pursuant to subsection (d) to confirm that the attorney general has completed a background check, that the person has met the requirements of subsection (b), and that the person has not been convicted of or pled guilty or nolo contendre to any felony under state or federal law in the last ten years; and

(2) Obtain an affidavit from the person as to the true and accurate nature of any information provided by the person to the bail bonding agent.

(f) The attorney general or any law enforcement agency, or any employees thereof, shall not be liable for any damages that may result from good faith compliance with this section.

§804-F Bail bonding agents; licensing requirements. (a) No person shall do business in this State as a bail bonding agent unless the person obtains a license pursuant to this part and the rules adopted by the director of commerce and consumer affairs.

(b) The director of commerce and consumer affairs shall adopt rules pursuant to chapter 91 to create the process and procedure for obtaining a license under this part.

§804-G Denial, probation, suspension, revocation, and termination of license. (a) The director of commerce and consumer affairs may refuse to issue or may revoke, suspend, or deny renewal of a bail bonding agent license, if, after notice to the applicant or licensee and a hearing, the director finds:

(1) That the applicant or licensee provided incorrect, misleading, incomplete, or materially untrue information in the license application;

(2) The applicant or licensee obtained or is attempting to obtain a license through misrepresentation or fraud;

(3) The applicant or licensee has been convicted of a crime of moral turpitude. For the purposes of this section, "crime of moral turpitude" shall include any sexual offense against a child;

(4) The applicant or licensee has engaged in the commission of any unfair trade practice or fraud;

(5) The applicant or licensee has engaged in the use of fraudulent, coercive, or dishonest practices or has demonstrated incompetence, untrustworthiness, or financial irresponsibility in the State or elsewhere;

(6) The applicant or licensee has been convicted of forgery of another's name to an application for a bail bonding agent license or to any document related to a bail bonding agent transaction;

(7) The applicant or licensee has violated any section of this part; or

(8) The applicant or licensee has failed to fully meet the licensing requirements provided for in this part and by the rules adopted by the director.

(b) Any order by the director issued pursuant to subsection (a) is reviewable by a court of competent jurisdiction.

§804-H Prohibited activities; bail bonding agents; civil penalties. (a) No bail bonding agent shall:

(1) Knowingly fail to comply with or knowingly violate any provisions of this part, any rule adopted by the director of commerce and consumer affairs, or any court order;

(2) Fail to satisfy, pay, or otherwise discharge a bail forfeiture judgment after having their name placed on the board for more than forty-five consecutive days for the same forfeiture;

(3) Have been convicted of a felony or have pled guilty or nolo contendre to a felony within the last ten years, regardless of whether the conviction or plea resulted from conduct in or related to the bail bond business;

(4) Fail to report, preserve without use and retain separately, or return collateral taken as security on any bond to the principal, indemnitor, or depositor of such collateral;

(5) Fail to pay a final, nonappealable judgment award for failure to return or repay collateral received to secure a bond;

(6) Hire, contract with, or pay compensation to any individual for bail recovery services in violation of this part;

(7) Continue to execute bail bonds in any court in this State while on the board, where the bail forfeiture judgment that resulted in being placed on the board has not been paid, stayed, vacated, exonerated, or otherwise discharged; or

(8) Pay, directly or indirectly, any commission, service fee, brokerage, or other valuable consideration to any person selling, soliciting, or negotiating bail within this State unless, at the time the services were performed, the person was a duly licensed bail bonding agent as required by this part.

(b) After a hearing on the matter, if the director finds that a violation of this section has occurred, the director may deny, suspend, revoke, or terminate a license.

(d) Except for the activities prohibited in subsection (b)(3), the director, in lieu of denying the renewal of, suspending, revoking, or terminating a license, may order the licensee to pay a civil fine in the sum of no less than $300 and no more than $1,000 for each violation. Upon the failure of the licensee to pay any civil fine within twenty days of its issuance, the director may deny the renewal of, suspend, revoke, or terminate the licensee's license; provided that the order of the director is not stayed by a court of competent jurisdiction.

§804-I Prohibited activities; bail bonding agents; criminal penalties. (a) It shall be unlawful for a bail bonding agent to engage in the following activities:

(1) Specify, suggest, or advise the employment of any particular attorney to represent the bail bonding agent's principal;

(2) Pay a fee, rebate, give, or promise to give anything of value to a jailer, law enforcement officer, clerk, deputy clerk, any other employee of any court, district attorney or any district attorney's employees, or any person who has power to arrest or to hold any person in custody;

(3) Pay a fee, rebate, or give anything of value to an attorney in bail bond matters, except in defense of any action on a bond or as counsel to represent the bail bonding agent or the bail bonding agent's representative or employees;

(4) Pay a fee, rebate, give, or promise to give anything of value to the person on whose bond the bail bonding agent is a surety;

(5) Fail to return any collateral or security, except for any fee received for the bond, within ten working days after receipt of a copy of the court order that results in a release of the bond by the court, unless the collateral also secures other obligations. A copy of the court order shall be provided to the bail bonding agent in the State or the company, if any, for whom the bail bonding agent works whether in the State or out-of-state, or both, by the person for whom the bond was written;

(6) Accept anything of value from a person on whose bond the bail bonding agent is a surety or from others on behalf of the person, except the fee or premium on the bond; provided that the bail bonding agent may accept collateral security or other indemnity if:

(A) No collateral or security in tangible property is taken by pledge or debt instrument which allows retention, sale, or other disposition of such property upon default;

(B) No collateral or security interest in real property is taken by mortgage or any other instrument unless the bail bonding agent's interest in the property is limited to the amount of the bond;

(C) The collateral or security taken by the bail bonding agent is not pledged directly to any court as security for any appearance bond; or

(D) The person from whom the collateral or security is taken is issued a receipt describing the condition of the collateral at the time it is taken into the custody of the bail bonding agent;

(7) Coerce, suggest, aid and abet, offer promise of favor, or threaten any person on whose bond the bail bonding agent is a surety or offers to become surety to induce that person to commit any crime;

(8) Act as a bail bonding agent in any court of record in this State while the name of the bail bonding agent is on the board, or under any circumstance where the bail bonding agent has failed to pay a bail forfeiture judgment after all applicable stays of execution have expired and the bond has not been otherwise exonerated or discharged;

(9) Have more than one bond posted at any one time and, in any single case, on behalf of any one person;

(10) Fail to issue to the person from whom collateral or security is taken a receipt which includes a description of the collateral or security at the time it is taken into the custody of the bail bonding agent; and

(11) Fail to post a bond within twenty-four hours of receipt of full payment or a signed contract for payment, or if the bond is not posted within twenty-four hours of receipt of full payment or a signed contract for payment, failure to refund all moneys received, release all liens, and return all collateral within forty-eight hours of receipt of the payment or contract.

(b) Any bail bonding agent who violates subsection (a) shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of no more than $1,000, imprisonment of no more than one year, or both; provided that any criminal penalty required by this section shall be in addition to, and not exclusive of, any other applicable penalty required by law.

(c) Any person who acts or attempts to act as a bail bonding agent and who is not licensed as required under this part, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of no more than $1,000, imprisonment for no more than one year, or both.

§804-J Compensated sureties; rules and regulations. The director of commerce and consumer affairs shall adopt rules pursuant to chapter 91 to regulate compensated sureties."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. The revisor of statutes shall substitute the appropriate numerical designations for letters.

SECTION 5. This Act shall take effect upon its approval; provided that enforcement of section 2 of this Act shall not commence until the director of commerce and consumer affairs adopts rules as provided in section 1 of this Act and files the rules with the office of the lieutenant governor as provided in chapter 91, Hawaii Revised Statutes.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1961
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII