BP BHEAD INT S

AN ACT Relating to bail bond agents; adding a new chapter to Title 18 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature declares that the licensing of bail bond agents should be uniform throughout the state. Therefore, it is the intent of the legislature to preempt any local regulation of bail bond agents, including licensing fees, but not including local business license fees.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Bail bond agent" means a person who provides security in the form of a corporate surety bond, or personal or real property to insure the appearance of a criminal defendant before the courts of this state.

(2) "Person" also means a corporation or copartnership, except where otherwise restricted.

(3) "Commission" means the bail bond commission of the state of Washington.

(4) "Director" means the director of licensing.

(5) "Collateral" or "collateral security" means a security given in addition to the direct security, and subordinate to it, intended to guaranty its validity or convertibility or insure its performance.

NEW SECTION. Sec. 3. The director, with the advice and approval of the commission, may adopt rules to govern the activities of bail bond agents and their employees, consistent with this chapter, fix the times and places for holding examinations of applicants for licenses and prescribe the method of conducting them. The director shall enforce all laws and rules relating to the licensing of bail bond agents, grant or deny licenses to bail bond agents, and hold hearings. The director may impose any one or more of the following sanctions: Suspend or revoke licenses, deny applications for licenses, fine violators, or require the completion of a course in a selected aspect of bail bond practice relevant to the provision of this chapter or rule violated. The director may institute a program of education for the benefit of the licensees and their employees and may charge a fee, as prescribed by the director by rule, for the certification of courses of instruction, instructors, and schools.

NEW SECTION. Sec. 4. There is established the bail bond commission of the state of Washington, consisting of the director of the commission and four commission members who shall act in an advisory capacity to the director. Three members shall be persons who have practiced as bail bond agents within the state of Washington for a period of five or more years.

The three commission members are appointed by the governor in the following manner: For a term of three years each, with the exception of the first appointees, who shall be appointed one for a term of one year, one for a term of two years, and one for a term of three years. Any vacancies on the commission shall be filled by appointment by the governor for the unexpired term.

NEW SECTION. Sec. 5. The three board members of the commission are compensated in accordance with RCW 43.03.240, plus travel expenses in accordance with RCW 43.03.050 and 43.03.060 when they are called into session by the director or when presiding at examinations for applicants for licenses or when otherwise engaged in the business of the commission.

NEW SECTION. Sec. 6. The commission has authority to hold educational conferences for the benefit of the industry, and shall conduct examinations of applicants for licenses under this chapter as maybe necessary. It is charged with the preparation of examinations and shall administer them.

NEW SECTION. Sec. 7. The commission is responsible for the preparation of the examination to be submitted to applicants, and shall make and file with the director a list, which must be signed by a majority of the members of the commission conducting the examination, of all applicants who successfully passed the examination and of those who failed.

Any applicant who fails to pass the examination may apply again.

No applicant may be permitted to take the examination for a bail bond agent's license without first satisfying the director that the applicant is eighteen years of age or older.

NEW SECTION. Sec. 8. It is unlawful for any person to act as a bail bond agent without first obtaining a license and otherwise complying with the provisions of this chapter.

No suit or action may be brought for the collection of compensation as a bail bond agent without alleging and proving that the plaintiff was a duly licensed bail bond agent before the time of offering to perform any act or service or procuring any promise or contract for the payment of compensation for any contemplated act or service.

NEW SECTION. Sec. 9. (1) Any person desiring to be a bail bond agent must pass an examination as provided in this chapter. A person must make application for an examination and for a license on a form prescribed by the director. Concurrently, the applicant shall:

(a) Pay an examination fee as prescribed by the director by rule;

(b) If the applicant is a corporation, furnish a certified copy of its articles of incorporation, and a list of its officers and directors and their addresses. If the applicant is a foreign corporation, the applicant shall furnish a certified copy of certificate of authority to conduct business in the state of Washington, a list of its officers and directors and their addresses, and evidence of current registration with the secretary of state. If the applicant is a copartnership, the applicant shall furnish a list of the partnership members and their addresses; and

(c) Furnish such other proof as the director may require concerning the honesty, truthfulness, and good reputation, as well as the identity, which may include fingerprints, of any applicants for a license, or of the officers of a corporation making the application.

(2) The director, by rule, may provide for temporary licenses, not to exceed six months, to permit ongoing business operations pending the outcome of the licensing application and examination procedure.

NEW SECTION. Sec. 10. The director shall provide each original applicant for a license with a manual containing a sample list of questions and answers pertaining to bail bond law and the operation of the business and may provide the manual at cost to any licensee or to other members of the public. The director shall ascertain by written examination, that each applicant, and in case of a corporation, or copartnership, that each officer, agent, or member whom it proposes to act as licensee, has:

(1) Appropriate knowledge of the English language, including reading, writing, spelling, and arithmetic;

(2) An understanding of the principles of bail bonds;

(3) An understanding of the obligations between principal and agent;

(4) An understanding of the principles of bailbonding practice and the canons of business ethics pertaining to bail bonds as adopted by the national association of bail agents; and

(5) An understanding of the provisions of this chapter.

NEW SECTION. Sec. 11. Before receiving his or her license every bail bond agent must pay a license fee as prescribed by the director by rule. Every license issued under the provisions of this chapter expires on the applicant's second birthday following issuance of the license. Licenses issued to partnerships expire on a date prescribed by the director by rule. Licenses issued to corporations expire on a date prescribed by the director by rule, except that if the corporation registration or certificate of authority filed with the secretary of state expires, the bail bond agent's license issued to the corporation shall expire on that date. Licenses must be renewed every two years on or before the date established under this section and a biennial renewal license fee as prescribed by the director by rule must be paid.

If the application for a renewal license is not received by the director on or before the renewal date, a penalty fee as prescribed by the director by rule shall be paid. Acceptance by the director of an application for renewal after the renewal date shall not be a waiver of the delinquency.

The license of any person whose license renewal fee is not received within ninety days from the date of expiration shall be canceled. This person may obtain a new license by satisfying the procedures and requirements as prescribed by the director by rule.

The director shall issue to each active licensee a license and a pocket identification card in a form and size as prescribed.

NEW SECTION. Sec. 12. Every licensed bail bond agent must have and maintain an office in this state accessible to the public that shall serve as his or her office for the transaction of business. The office must comply with the zoning requirements of city or county ordinances and the bail bond agent's license must be prominently displayed in the office.

NEW SECTION. Sec. 13. A bail bond agent may apply to the director for authority to establish one or more branch offices under the same name as the main office upon the payment of a fee as prescribed by the director by rule. The director shall issue a duplicate license for each of the branch offices showing the location of the main office and the particular branch. Each duplicate license shall be prominently displayed in the office for which it is issued.

NEW SECTION. Sec. 14. Notice in writing shall be given to the director of any change by a bail bond agent of his or her business location or of any branch office. Upon the surrender of the original license for the business or the duplicate license applicable to a branch office, and a payment of a fee as prescribed by the director by rule, the director shall issue a new license or duplicate license, as the case may be, covering the new location.

NEW SECTION. Sec. 15. The director may publish annually a list of names and addresses of bail bond agents licensed under this chapter, together with a copy of this chapter and any information relative to the enforcement of this chapter as he or she may deem of interest to the public; and he or she may mail one copy to each licensed bail bond agent.

NEW SECTION. Sec. 16. (1) Any license issued under this chapter and not otherwise revoked is deemed "inactive" at any time it is delivered to the director. Until reissued under this chapter, the holder of an inactive license is deemed to be unlicensed.

(2) An inactive license may be renewed on the same terms and conditions as an active license. Failure to renew shall result in cancellation in the same manner as an active license.

(3) An inactive license may be placed in an active status upon completion of an application as provided by the director and upon compliance with this chapter and the rules adopted under this chapter.

(4) The provisions of this chapter relating to the denial, suspension, and revocation of a license are applicable to an inactive license as well as an active license, except that when proceedings to suspend or revoke an inactive license have been initiated, the license shall remain inactive until the proceedings have been completed.

NEW SECTION. Sec. 17. All fees required under this chapter shall be set by the director in accordance with RCW 43.24.086 and shall be paid to the state treasurer. The sum of five dollars from each license fee and each renewal fee received from a bail bond agent shall be placed in the general fund. The balance of these fees and all other fees paid under the provisions of this chapter shall be placed in the bail bond commission account hereby created in the state treasury. All money derived from fines imposed under this chapter shall also be deposited in the bail bond commission account, shall be used solely for education for the benefit of licensees, and shall be subject to appropriation under chapter 43.88 RCW.

NEW SECTION. Sec. 18. The director may, upon his or her own motion, and shall upon verified complaint in writing by any person, investigate the actions of any person engaged in the business or acting in the capacity of a bail bond agent and may impose any one or more of the following sanctions: Suspend or revoke, levy a fine not to exceed one thousand dollars for each offense, require the completion of a course in a selected area of bail bond practice relevant to the section of this chapter or rule violated, or deny the license of any holder or applicant who is guilty of:

(1) Obtaining a license by means of fraud, misrepresentation, concealment, or through the mistake or inadvertence of the director;

(2) Violating any of the provisions of this chapter or any lawful rules;

(3) Being convicted in a court of competent jurisdiction of this or any other state, or federal court, of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud, or any similar offense or offenses. For the purposes of this section being convicted includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction, and all proceedings in which the sentence has been deferred or suspended;

(4) Making, printing, publishing, distributing, or causing, authorizing, or knowingly permitting the making, printing, publication, or distribution of false statements, descriptions, or promises of the character as to reasonably induce any person to act, if the statements, descriptions, or promises purport to be made or to be performed by either the licensee or his or her principal and the licensee then knew or, by the exercise of reasonable care and inquiry, could have known, of the falsity of the statements, descriptions, or promises;

(5) Knowingly committing, or being a party to, any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme, or device whereby any other person lawfully relies upon the word, representation, or conduct of the licensee;

(6) Conversion of any money, contract, deed, note, mortgage, or abstract or other evidence of title, to his or her own use or to the use of his or her principal or of any other person, when delivered to him or her in trust or on condition, in violation of the trust or before the happening of the condition; and failure to return any money or contract, deed, note, mortgage, abstract, or other evidence of title within thirty days after the owner is entitled to possession, and makes demand for possession, shall be prima facie evidence of a conversion;

(7) Failing, upon demand, to disclose any information within his or her knowledge to, or to produce any document, book or record in his or her possession for inspection of the director or his or her authorized representatives acting by authority of law;

(8) Continuing to act as a bail bond agent when the interests of the public are endangered, after the director has, by order in writing, stated objections;

(9) Committing any act of fraudulent or dishonest dealing or a crime involving moral turpitude, and a certified copy of the final holding of any court of competent jurisdiction in this matter is conclusive evidence in any hearing under this chapter;

(10) Advertising in any manner without affixing the bail bond agent's name as licensed to the advertisement;

(11) Misrepresentation of his or her membership in any state or national bail bond agent association;

(12) Discrimination against any person in hiring or in sales activity, on the basis of race, color, creed, or national origin, or violating any of the provisions of any state or federal antidiscrimination law;

(13) Failing to keep an escrow or trustee account of funds deposited with him or her relating to a bail bond transaction, for a period of three years, showing to whom paid, and the other pertinent information as the director may require, the records to be available to the director, or his or her representatives, on demand, or upon written notice given to the bank;

(14) Failing to preserve for three years following its consummation records relating to any bail bond transaction;

(15) Any conduct in a bail bond transaction which demonstrates bad faith, dishonesty, untrustworthiness, or incompetency; or

(16) Violation of an order to cease and desist that is issued by the director under this chapter.

NEW SECTION. Sec. 19. The director may deputize one or more assistants to perform his or her duties with reference to disciplinary action.

NEW SECTION. Sec. 20. The disciplinary proceedings shall be had on motion of the director or after a statement in writing verified by some person or persons familiar with the facts upon which the proposed disciplinary action is based has been filed with the director. Upon receipt of a statement or accusation, the director shall make a preliminary investigation of the facts charged to determine whether the statement or accusation is sufficient. If the director determines the statement or accusation is sufficient to require formal action, the director shall set the matter for hearing at a specified time and place. A copy of the order setting time and place and a copy of the verified statement shall be served upon the licensee or applicant involved not less than twenty days before the day appointed in the order for the hearing. The department of licensing, the licensee or applicant accused, and the person making the accusation may be represented by counsel at the hearing. The director or an administrative law judge appointed under chapter 34.12 RCW shall hear and receive pertinent evidence and testimony.

NEW SECTION. Sec. 21. If the licensed person or applicant accused does not appear at the time and place appointed for the hearing in person or by counsel, the hearing officer may proceed and determine the facts of the accusation in his or her absence. The proceedings may be conducted at places within the state convenient to all persons concerned as determined by the director, and may be adjourned from day to day or for longer periods. The hearing officer shall have a transcript of all proceedings prepared by a reporter and shall furnish upon request after completion, a copy of the transcript to the licensed person or applicant accused in the proceedings at the expense of the licensee or applicant. The hearing officer shall certify the transcript of proceedings to be true and correct. If the director finds that the statement or accusation is not proved by a fair preponderance of evidence, the director shall notify the licensee or applicant and the person making the accusation and dismiss the case.

NEW SECTION. Sec. 22. If the director decides, after a hearing, that the evidence supports the accusation by a preponderance of evidence, the director may impose sanctions authorized under this chapter. In this event the director shall enter an order to that effect and shall file the order in his or her office and immediately mail a copy to the affected party at the address of record with the department of licensing. The order shall not be operative for a period of ten days from the date it is entered. Any licensee or applicant aggrieved by a final decision by the director in an adjudicative proceeding, whether the decision is affirmative or negative in form, is entitled to a judicial review in the superior court under the provisions of the administrative procedure act under chapter 34.05 RCW. Upon instituting appeal in the superior court, the appellant shall give a cash bond to the state of Washington. The bond shall be filed with the clerk of the court, in a sum to be fixed by rule by the director and approved by the judge of the court, conditioned to pay all costs that may be awarded against the appellant in the event of an adverse decision. The bond and notice must be filed within thirty days from the date of the director's decision.

NEW SECTION. Sec. 23. The filing of a notice and bond supersedes the order of the director until the final determination of the appeal. The director shall prepare at appellant's expense and shall certify a transcript of the whole record to the director's office of all matters involved in the appeal, and the transcript shall be delivered by the director to the court in which the appeal is pending. The appellant shall be notified of the filing of the transcript and the cost and shall within fifteen days after notification pay the cost of the transcript. If the cost is not paid in full within fifteen days, the appeal shall be dismissed.

NEW SECTION. Sec. 24. If the appellant fails to perfect an appeal or fails to pay the expense of preparing the transcript, the stay of proceedings shall automatically terminate.

An aggrieved party may secure review of a final judgment of the superior court. The appeal shall be taken in the manner provided by law for appeals from the superior court in other civil cases.

NEW SECTION. Sec. 25. Every bond given under the provisions of this chapter, after approval by the director, shall be filed in his or her office. Any person who is damaged by the wrongful conversion of trust funds by any bail bond agent shall, in addition to other legal remedies, have a right of action on the bond for all damages not exceeding five thousand dollars against a bail bond agent.

NEW SECTION. Sec. 26. (1) Every licensed bail bond agent shall keep adequate records of all bail bond transactions handled by or through him or her, as specified by rule. The records shall be open to inspection by the director or authorized representatives.

(2) Every bail bond agent shall also keep separate bail bond cash collateral accounts in a recognized Washington state depositary authorized to receive funds. Bail bond cash collateral accounts shall be kept separate and apart and physically segregated from the bail bond agent's own funds. All property, funds, or moneys of clients which are being held by a bail bond agent pending the closing of a bail bond transaction, or which have been collected for the client and are being held for disbursement for or to the client shall be segregated from the bail bond agents' own property and any cash collateral shall be deposited not later than the third banking day following receipt of the funds or moneys.

NEW SECTION. Sec. 27. Any person acting as a bail bond agent without a license, or violating any of the provisions of this chapter, is guilty of a gross misdemeanor.

NEW SECTION. Sec. 28. The attorney general shall render opinions to the director upon all questions of law relating to the construction or interpretation of this chapter, or arising in the administration of this chapter, that may be submitted by the director. The attorney general is the attorney for the director in all actions and proceedings brought by or against the director under this chapter.

NEW SECTION. Sec. 29. The director may prefer a complaint for violation of any section of this chapter before any court of competent jurisdiction.

The prosecuting attorney of each county shall prosecute any violation of this chapter that occurs in his or her county, and if the prosecuting attorney fails to act, the director may request the attorney general to take action in lieu of the prosecuting attorney.

Process issued by the director extends to all parts of the state, and may be served by any person authorized to serve process of courts of record, or may be mailed by registered mail to the licensee's last business address of record in the office of the director.

Whenever the director believes from evidence satisfactory to him or her that any person has violated any of the provisions of this chapter or any rule, order, license, decision, demand, or requirement, he or she may bring an action in the superior court in the county where the person resides in order to enjoin that person from continuing the violation or engaging or doing any act or acts in furtherance of the violation. In this action an order or judgment may be entered awarding a preliminary or final injunction as may be proper.

The director may petition the superior court in any county in this state for the immediate appointment of a receiver to take over, operate, or close any bail bond agent's office in this state that is found, upon inspection of its books and records, to be operating in violation of this chapter, pending a hearing.

NEW SECTION. Sec. 30. The director may administer oaths; certify to all official acts; subpoena and bring before him or her any person in this state as a witness; compel the production of books and papers; and take the testimony of any person by deposition in the manner prescribed by the superior courts in civil cases, in any hearing in any part of the state.

Each witness, who appears by order of the director, shall receive for his or her attendance the fees and mileage allowed to a witness in civil cases in the superior court. Witness fees shall be paid by the party at whose request the witness is subpoenaed.

If a witness, who has not been required to attend at the request of any party, is subpoenaed by the director, the fees and mileage shall be paid from funds appropriated for the use of the department of licensing in the same manner as other expenses of the department are paid.

NEW SECTION. Sec. 31. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 32. The director of licensing may take such steps as are necessary to ensure that this act is implemented on its effective date.

NEW SECTION. Sec. 33. Sections 1 through 31 of this act shall constitute a new chapter in Title 18 RCW.