BP BHEAD INT S [atlas:bill]

AN ACT Relating to recovery of bail fugitives; amending RCW 10.19.140; adding a new section to chapter 4.24 RCW; adding a new section to chapter 18.185 RCW; 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. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Bail bond recovery agent" means a person who is licensed under this chapter and is retained by a bail bond agent or agency for the purpose of locating, detaining, capturing, or transporting bail fugitives.

(2) "Bail fugitive" means a person who has failed to appear under the terms of a recognizance, bail, or appearance bond and for whom a bail bond agent or bail bond agency has posted recognizance.

(3) "Chief law enforcement officer" means the elected or appointed police administrator of a municipal, county, or state police or sheriff's department that has full law enforcement powers in its jurisdiction.

(4) "Commission" means the criminal justice training commission established in chapter 43.101 RCW.

(5) "Department" means the department of licensing.

(6) "Director" means the director of the department of licensing.

(7) "Employer" includes any individual, firm, corporation, partnership, association, company, society, manager, contractor, subcontractor, bureau, agency, service, office, or an agent of any of the foregoing that employs or seeks to enter into an arrangement to employ any person as a bail bond recovery agent.

(8) "Firearms certificate" means a certificate issued by the commission or Washington state patrol academy.

(9) "Person" includes any individual, firm, corporation, partnership, association, company, society, manager, contractor, subcontractor, bureau, agency, service, office, or an agent or employee of any of the foregoing.

(10) "Sworn peace officer" means a person who is an employee of the federal government, the state, or a political subdivision, agency, or department branch of a municipality or other unit of local government, and has law enforcement powers.

NEW SECTION. Sec. 2. EXEMPTIONS. The requirements of this chapter do not apply to:

(1) An officer or employee of the United States or of this state or a political subdivision thereof, while engaged in the performance of official duties;

(2) An attorney at law while performing duties as an attorney;

(3) A licensed collection agency or its employee, while acting within the scope of employment and making an investigation incidental to the business of the agency;

(4) A licensed insurance adjuster performing duties within the scope of the adjuster's license;

(5) A secured creditor engaged in the repossession of the creditor's collateral, or a lessor engaged in the repossession of leased property in which it claims an interest;

(6) A person who is a forensic scientist, accident reconstructionist, or other person who performs similar functions and does not profess to be an investigator in any other capacity; or

(7) A person engaged solely in the business of securing information about persons or property from public records.

NEW SECTION. Sec. 3. BAIL BOND RECOVERY AGENT LICENSE‑-REQUIREMENTS. An applicant must meet the following minimum requirements to obtain a bail bond recovery agent license:

(1) Be an armed private investigator licensed under chapter 18.165 RCW, a sworn police officer, or a retired sworn police officer;

(2) Be a citizen or resident alien of the United States;

(3) Have a current firearms certificate;

(4) Have a current license to carry a concealed weapon;

(5) Not have been convicted of a crime in any jurisdiction, if the director determines: (a) That the applicant's particular crime directly relates to his or her capacity to perform the duties of a bail bond recovery agent, and (b) that the license should be withheld to protect the citizens of Washington state. The director shall make the determination to withhold a license because of previous convictions notwithstanding the restoration of employment rights act, chapter 9.96A RCW. Any gross misdemeanor or felony conviction in any jurisdiction shall disqualify a license applicant;

(6) Submit a set of fingerprints;

(7) Pay the required nonrefundable fee for each application; and

(8) Submit a fully completed application that includes proper identification on a form prescribed by the director for each company of employment.

NEW SECTION. Sec. 4. INVESTIGATION OF APPLICANTS. (1) Applications for licenses required under this chapter must be filed with the director on a form provided by the director. The director may require any information and documentation that reasonably relates to the need to determine whether the applicant meets the criteria.

(2) After receipt of an application for a license, the director shall conduct an investigation to determine whether the facts set forth in the application are true and shall request that the Washington state patrol compare the fingerprints submitted with the application to fingerprint records available to the Washington state patrol. The Washington state patrol shall forward fingerprints of applicants for a bail bond recovery agent license to the federal bureau of investigation for a national criminal history records check. The director may require that fingerprint cards of licensees be periodically reprocessed to identify criminal convictions subsequent to registration.

NEW SECTION. Sec. 5. LICENSE CARDS AND CERTIFICATES‑-ISSUANCE, REQUIREMENTS, AND EXPIRATION. (1) The director shall issue a bail bond recovery agent license card to each licensed bail bond recovery agent.

(a) The license card may not be used as security clearance.

(b) A bail bond recovery agent shall carry the license card whenever performing the duties of a bail bond recovery agent and shall exhibit the card upon request.

(d) Every advertisement by a licensee soliciting or advertising business shall contain the name of the licensee, the address of record, and the license number as it appears in the records of the director.

(e) The licensee shall within thirty days notify the director of any material change in the information furnished or required to be furnished to the director.

(2) Bail bond recovery agent licenses expire every five years. A license may be renewed by completing the application process specified in sections 3 and 4 of this act.

NEW SECTION. Sec. 6. SURETY BOND OR CERTIFICATE OF INSURANCE REQUIRED. (1) No bail bond recovery agent license may be issued under the provisions of this chapter unless the applicant files with the director a surety bond, executed by a surety company authorized to do business in this state, in the sum of ten thousand dollars conditioned to recover against the agent's wrongful or illegal acts in conducting business licensed under this chapter. The bond must be made payable to the state of Washington, and anyone injured by the bail bond recovery agent's wrongful or illegal acts has the right and is permitted to sue directly upon this obligation in his or her own name. This obligation is subject to successive suits for recovery until the face amount of the surety bond is exhausted.

(2) Every licensee must at all times maintain on file with the director the surety bond required by this section in full force and effect. If a licensee fails to maintain the required surety bond, the director shall suspend the licensee's license and shall not reinstate the license until this requirement is met.

(3) In lieu of posting bond, a licensee may file with the director a certificate of insurance as evidence of comprehensive general liability coverage of at least twenty‑five thousand dollars for bodily or personal injury and twenty‑five thousand dollars for property damage.

(4) Armed private investigators who have posted a surety bond or certificate of insurance under RCW 18.165.100 do not need to post an additional bond under this chapter.

(5) The director may approve alternative methods of guaranteeing financial responsibility.

NEW SECTION. Sec. 7. REGULATORY PROVISIONS EXCLUSIVE‑-AUTHORITY OF THE STATE AND POLITICAL SUBDIVISIONS. (1) The provisions of this chapter relating to the licensing for regulatory purposes of bail bond recovery agents are exclusive. No governmental subdivision of this state may enact any law or rule regarding licensing those agents for regulatory purposes, except as provided in subsections (2) and (3) of this section.

(2) This section does not prevent a political subdivision of this state from levying a business fee, business and occupation tax, or other tax upon bail bond recovery agents if those fees or taxes are levied by the state on other types of businesses within its boundaries.

(3) This section does not prevent this state or a political subdivision of this state from licensing for regulatory purposes bail bond recovery agents with respect to activities that are not regulated under this chapter.

NEW SECTION. Sec. 8. CONTRACTS TO RECOVER BAIL FUGITIVES. A bail bond recovery agent may not attempt to detain, capture, or transport any bail fugitive without first executing with a bail bond agent or agency licensed in the state of Washington a contract or agreement to locate, detain, capture, or transport the bail fugitive. Contracts or agreements between bail bond recovery agents and bail bond agents or agencies must be in writing and must include:

(1) The name of the bail fugitive;

(2) The date of execution and duration of the contract;

(3) The face value of the bail bond; and

(4) The compensation due to the bail bond recovery agent.

In no event may the recovery fee paid to the bail bond recovery agent exceed twenty percent of the face value of the bond. If a bail fugitive voluntarily surrenders directly to the bail bond agent or agency, the provisions of this chapter do not apply.

NEW SECTION. Sec. 9. OUT-OF-STATE BAIL BOND RECOVERY AGENTS OPERATING ACROSS STATE LINES. Bail bond recovery agents whose duties require them to operate across state lines may operate in this state only under a contract with a bail bond recovery agent licensed in this state. The contracting Washington bail bond recovery agent assumes liability for all wrongful or illegal acts committed by the out-of-state agent while conducting business licensed under this chapter. A person from another state acting as a bail bond recovery agent in Washington may not solicit business in this state or profess to be licensed in this state.

NEW SECTION. Sec. 10. REQUIRED NOTICE OF CERTAIN OCCURRENCES. A bail bond recovery agent shall notify the director whenever he or she discharges a firearm while on duty other than on a supervised firearm range. The notification must be made within five business days of the date the firearm is discharged.

NEW SECTION. Sec. 11. LICENSES REQUIRED‑-USE OF PUBLIC LAW ENFORCEMENT INSIGNIA PROHIBITED‑-PENALTIES‑-ENFORCEMENT. (1) After July 30, 1998, any person who performs the functions and duties of a bail bond recovery agent in this state without being licensed in accordance with the provisions of this chapter, or any person presenting or attempting to use the license of another, or any person who gives false or forged evidence of any kind to the director in obtaining a license, or any person who falsely impersonates any other licensee, or any person who attempts to use an expired or revoked license, or any person who violates any of the provisions of this chapter is guilty of a gross misdemeanor.

(2) It is a gross misdemeanor for a person to possess or use any vehicle or equipment displaying the word "police" or "law enforcement officer" or having any sign, shield, marking, accessory, or insignia that indicates that the equipment or vehicle belongs to a public law enforcement agency.

(3) It is the duty of all officers of the state and its political subdivisions to enforce the provisions of this chapter. The attorney general shall act as legal adviser of the director, and shall render legal assistance as may be necessary in carrying out the provisions of this chapter.

NEW SECTION. Sec. 12. PROHIBITED ACTS. The following acts are prohibited and constitute grounds for disciplinary action, assessing administrative penalties, or denial, suspension, or revocation of any license under this chapter, as deemed appropriate by the director:

(1) Knowingly violating any of the provisions of this chapter or the rules adopted under this chapter;

(2) Knowingly making a material misstatement or omission in the application for or renewal of a license or firearms certificate, including falsifying requested identification information;

(3) Making any statement that would cause another person reasonably to believe that the bail bond recovery agent is an employee of the federal government, the state, or a political subdivision, agency, or department or branch of a municipality or other local government;

(4) Conviction of a gross misdemeanor or felony. Conviction in a criminal proceeding is not a condition precedent to disciplinary action. Upon such a conviction, however, the judgment and sentence is conclusive evidence at the ensuing disciplinary hearing of the license holder's or applicant's guilt of the crime described in the indictment or information. For the purposes of this section, conviction 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;

(5) Advertising that is false, fraudulent, or misleading;

(6) Incompetence or negligence that results in injury to a person or that creates an unreasonable risk that a person may be harmed;

(7) Suspension, revocation, or restriction of the individual's license to practice the profession ordered or decreed by competent authority in any state, federal, or foreign jurisdiction. A certified copy of the order, stipulation, or agreement is conclusive evidence of the revocation, suspension, or restriction;

(8) Failure to cooperate with the director by:

(a) Not furnishing any necessary paper or document requested by the director for purposes of conducting an investigation for disciplinary action, or for denial, suspension, or revocation of a license under this chapter;

(b) Not furnishing in writing a full and complete explanation covering the matter contained in a complaint filed with the department; or

(c) Not responding to subpoenas issued by the director, whether or not the recipient of the subpoena is the accused in the proceeding;

(9) Failure to comply with an order issued by the director or with terms of an assurance of discontinuance entered into with the director;

(10) Aiding or abetting an unlicensed person in practicing without a license if a license is required;

(11) Misrepresentation or fraud in any aspect of the conduct of the business or profession;

(12) Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the director or the director's authorized representative, or by using threats or harassment to prevent any client or witness from providing evidence in a disciplinary proceeding or any other legal action;

(13) Assigning or transferring any license issued under this chapter;

(14) Failure to maintain bond or insurance; and

(15) Detaining, capturing, or transporting a bail fugitive without first executing with a bail bond agent or agency licensed in the state of Washington a contract or agreement to locate, detain, capture, or transport the bail fugitive.

NEW SECTION. Sec. 13. AUTHORITY OF DIRECTOR. The director has the following authority in administering this chapter:

(1) To adopt, amend, and repeal rules as necessary to carry out this chapter;

(2) To issue subpoenas and administer oaths in connection with an investigation, hearing, or proceeding held under this chapter;

(3) To take depositions or cause depositions to be taken and to use other discovery procedures as needed in an investigation, hearing, or proceeding held under this chapter;

(4) To compel attendance of witnesses at hearings;

(5) In the course of investigating a complaint or report of unprofessional conduct, to conduct practice reviews;

(6) To take emergency action ordering summary suspension of a license, or restriction or limitation of the licensee's practice pending proceedings by the director;

(7) To use the office of administrative hearings as authorized in chapter 34.12 RCW to conduct hearings. However, the director or the director's designee shall make the final decision in the hearing;

(8) To enter into contracts for professional services determined to be necessary for adequate enforcement of this chapter;

(9) To adopt standards of professional conduct or practice;

(10) In the event of a finding of unprofessional conduct by an applicant or license holder, to impose sanctions against an applicant or license holder as provided by this chapter;

(11) To enter into an assurance of discontinuance in lieu of conducting a hearing or issuing a statement of charges. The assurance consists of a statement of the law in question and an agreement not to violate the stated provision. The applicant or license holder is not required to admit to any violation of the law, and the assurance is not an admission. Violation of an assurance under this subsection is grounds for disciplinary action;

(12) To designate individuals authorized to sign subpoenas and statements of charges;

(13) To employ investigative, administrative, and clerical staff as necessary for the enforcement of this chapter;

(14) To compel attendance of witnesses at hearings; and

(15) To assess administrative penalties for violations of law, rules, or regulations.

NEW SECTION. Sec. 14. COMPLAINTS‑-INVESTIGATION‑-IMMUNITY. Persons, including but not limited to consumers, licensees, corporations, organizations, and state and local government agencies, may submit written complaints to the department charging license holders or applicants with unprofessional or unlawful conduct and specifying the grounds for the charges. If the director determines that a complaint merits investigation, or if the director has reason to believe, without a formal complaint, that a license holder or applicant has engaged in unprofessional or unlawful conduct, the director shall investigate to determine if there has been unprofessional or unlawful conduct. A person who files a complaint under this section in good faith is immune from suit in any civil action related to the filing or contents of the complaint.

NEW SECTION. Sec. 15. VIOLATIONS--STATEMENT OF CHARGES--HEARINGS. (1) If the director determines, upon investigation, that there is reason to believe a violation of this chapter has occurred, the director shall prepare a statement of charges and shall serve it upon the license holder or applicant. The statement of charges must be accompanied by a notice that the license holder or applicant may request a hearing to contest the charges. The license holder or applicant must file a request for hearing with the department within twenty days after being served the statement of charges. Failure to request a hearing constitutes a default, whereupon the director may enter an order pursuant to RCW 34.05.440.

(2) If a hearing is requested, the time of the hearing must be scheduled, but the hearing may not be held earlier than thirty days after service of the charges upon the license holder or applicant. A notice of hearing must be issued at least twenty days prior to the hearing, specifying the time, date, and place of the hearing.

NEW SECTION. Sec. 16. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT TO HEARINGS. The procedures governing adjudicative proceedings before agencies under chapter 34.05 RCW, the administrative procedure act, govern all hearings before the director.

NEW SECTION. Sec. 17. UNPROFESSIONAL OR UNLAWFUL CONDUCT OR INABILITY TO PRACTICE‑-PENALTIES. Upon a finding that a license holder or applicant has committed unprofessional or unlawful conduct, the director may issue an order providing for one or any combination of the following:

(1) Revocation of the license;

(2) Suspension of the license for a fixed or indefinite term;

(3) Monitoring of the practice by a supervisor approved by the director;

(4) Withholding a license request;

(5) Other corrective action;

(6) Refund of fees billed to and collected; or

(7) Assessing administrative penalties.

Any of the actions under this section may be totally or partly stayed by the director. All costs associated with compliance with orders issued under this section are the obligation of the license holder or applicant.

NEW SECTION. Sec. 18. ENFORCEMENT OF ORDERS FOR PAYMENT OF FINES. If an order for payment of a fine is made as a result of a hearing, and timely payment is not made as directed in the final order, the director may enforce the order for payment in the superior court in the county in which the hearing was held. This right of enforcement exists in addition to any other rights the director may have as to a licensee ordered to pay a fine but does not limit a licensee's ability to seek judicial review.

In an action for enforcement of an order of payment of a fine, the director's order is conclusive proof of the validity of the order of payment of a fine and the terms of payment.

NEW SECTION. Sec. 19. UNLICENSED PRACTICE‑-COMPLAINTS‑-DIRECTOR'S AUTHORITY‑-INJUNCTIONS‑-PENALTY. (1) The director shall investigate complaints concerning practice by unlicensed persons of a profession or business for which a license is required by this chapter. In the investigation of complaints, the director has the same authority as provided the director under chapter 18.185 RCW. The director shall issue a cease and desist order to a person after notice and hearing and upon a determination that the person has violated this subsection. If the director makes a written finding of fact that the public interest will be irreparably harmed by delay in issuing an order, the director may issue a temporary cease and desist order. The cease and desist order does not relieve the person practicing or operating a business without a license from criminal prosecution therefor. The remedy of a cease and desist order is in addition to criminal liability. The cease and desist order is conclusive proof of unlicensed practice and may be enforced under RCW 7.21.060. This method of enforcing the cease and desist order may be used in addition to, or as an alternative to, any provisions for enforcement of agency orders.

(2) The attorney general, a county prosecuting attorney, the director, or any person may, in accordance with the laws of this state governing injunctions, maintain an action in the name of this state to enjoin from practice or operation any person practicing a profession or operating a business without a license required by this chapter. However, the injunction does not relieve the person practicing a profession or operating a business without a license from criminal prosecution therefor. The remedy by injunction is in addition to any criminal liability.

(3) Practicing a profession without the license required by this chapter, unless otherwise exempted by law, constitutes a gross misdemeanor. Operating a business without the license required by this chapter, unless otherwise exempted by law, constitutes a gross misdemeanor.

NEW SECTION. Sec. 20. VIOLATION OF INJUNCTION‑-PENALTY. A person or business that violates an injunction issued under this chapter shall pay a civil penalty, as determined by the court, of not more than twenty‑five thousand dollars, which shall be paid to the department. For purposes of this section, the superior court issuing any injunction shall retain jurisdiction and shall continue the cause of action. In such cases the attorney general acting in the name of the state may petition for the recovery of civil penalties.

NEW SECTION. Sec. 21. IMMUNITY. The director and individuals acting on the director's behalf are immune from suit in any action, civil or criminal, based on disciplinary proceedings or other official acts performed in the course of their duties in the administration and enforcement of this chapter.

NEW SECTION. Sec. 22. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT TO ACTS OF THE DIRECTOR. The director, in implementing and administering the provisions of this chapter, shall act in accordance with the administrative procedure act, chapter 34.05 RCW.

NEW SECTION. Sec. 23. LICENSE OR CERTIFICATE SUSPENSION‑-NONPAYMENT OR DEFAULT ON EDUCATIONAL LOAN OR SCHOLARSHIP. The director shall suspend the license or certificate of any person who has been certified by a lending agency and reported to the director for nonpayment of, or default on, a federally or state‑guaranteed educational loan or service‑conditional scholarship. Before ordering the suspension, the agency must provide the person an opportunity for a brief adjudicative proceeding under RCW 34.05.485 through 34.05.494 and issue a finding of nonpayment of, or default on, a federally or state‑guaranteed educational loan or service‑conditional scholarship. The person's license or certificate may not be reissued until the person provides the director a written release issued by the lending agency stating that the person is making payments on the loan in accordance with a repayment agreement approved by the lending agency. If the person continues to meet all other requirements for licensure or certification during the suspension, reinstatement is automatic upon receipt of the notice and payment of any reinstatement fee the director may impose.

NEW SECTION. Sec. 24. A new section is added to chapter 4.24 RCW to read as follows:

BAIL BOND AGENT AND AGENCY‑-IMMUNITY FROM SUIT. If a bail bond agent or bail bond agency retains a bail bond recovery agent licensed under chapter 18.-- RCW (sections 1 through 23 of this act) to locate, detain, capture, or transport a bail fugitive, that bail bond agent or agency is immune from a civil action for damages resulting from acts or omissions of the bail bond recovery agent acting in the course and scope of his or her contract, as long as such acts or omissions are made in good faith. The bail bond recovery agent is an independent contractor.

If a bail bond agent or bail bond agency retains any person, agent, or agency other than a bail bond recovery agent licensed under chapter 18.-- RCW (sections 1 through 23 of this act) to locate, detain, capture, or transport a bail fugitive, that person, agent, or agency is an employee of the bail bond agent or bail bond agency.

NEW SECTION. Sec. 25. A new section is added to chapter 18.185 RCW to read as follows:

LIMITATION OF CONTRACTUAL REMEDIES. No bail bond agent or agency may execute a contract or agreement with any person, acting in his or her capacity as a bail bond recovery agent under chapter 18.-- RCW (sections 1 through 23 of this act) for any purpose other than to locate, detain, capture, or transport a bail fugitive who has failed to perform the obligations of a recognizance, bail, or appearance bond. The sole remedy for any other agreements or contracts between bail bond agents or agencies and bail fugitives lies in contract.

Sec. 26. RCW 10.19.140 and 1986 c 322 s 3 are each amended to read as follows:

If a forfeiture has been entered against a person in a criminal case and the person is returned to custody or produced in court within twelve months from the forfeiture, then the full amount of the bond, less any and all costs determined by the court to have been incurred by law enforcement in transporting, locating, apprehending, or processing the return of the person to the jurisdiction of the court, shall be remitted to the surety if the surety was directly responsible for producing the person in court or directly responsible for apprehension of the person by law enforcement.

If a person in a criminal case released under a surety bond is surrendered under RCW 10.19.160, the administrator of the facility at which the person is surrendered shall acknowledge the surrender in writing or issue an affidavit of surrender. The bond must be exonerated upon presentation of the written acknowledgment or affidavit of surrender to the issuing court.

NEW SECTION. Sec. 27. Sections 1 through 23 of this act constitute a new chapter in Title 18 RCW.

NEW SECTION. Sec. 28. CAPTIONS NOT LAW. Captions used in this act are not any part of the law.

NEW SECTION. Sec. 29. 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.