FIRST REGULAR SESSION

HOUSE COMMITTEE SUBSTITUTE FOR

HOUSE BILL NO. 253

91ST GENERAL ASSEMBLY


Reported from the Committee on Public Safety, Law Enforcement, and Veteran Affairs, February 22, 2001, with recommendation that the House Committee Substitute for House Bill No. 253 Do Pass.

TED WEDEL, Chief Clerk

0874L.02C


AN ACT

To repeal sections 374.700, 374.715 and 374.755, RSMo 2000, relating to the regulation and licensing of certain professions, and to enact in lieu thereof eighteen new sections relating to the same subject, with penalty provisions.




Be it enacted by the General Assembly of the state of Missouri, as follows:

Section A. Sections 374.700, 374.715 and 374.755, RSMo 2000, are repealed and eighteen new sections enacted in lieu thereof, to be known as sections 374.695, 374.700, 374.702, 374.704, 374.715, 374.717, 374.755, 374.757, 374.764, 374.782, 374.783, 374.784, 374.785, 374.786, 374.787, 374.788, 374.789 and 590.132, to read as follows:

374.695. Sections 374.695 to 374.775 may be known and shall be cited as the "Professional Bail Bondsman Licensing Act".

[374.700. As used in sections 374.700 to 374.775, the following terms shall mean:

(1) "Bail bond agent", a surety agent or an agent of a property bail bondsman who is duly licensed under the provisions of sections 374.700 to 374.775, is employed by and is working under the authority of a licensed general bail bond agent;

(2) "Department", the department of insurance of the state of Missouri;

(3) "Director", the director of the department of insurance;

(4) "General bail bond agent", a surety agent or a property bail bondsman, as defined in sections 374.700 to 374.775, who is licensed in accordance with sections 374.700 to 374.775 and who devotes at least fifty percent of his working time to the bail bond business in this state;

(5) "Property bail bondsman", a person who pledges United States currency, United States postal money orders or cashier's checks or other property as security for a bail bond in connection with a judicial proceeding, and who receives or is promised therefor money or other things of value;

(6) "Surety bail bond agent", any person appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings, and who receives or is promised money or other things of value therefor.]

374.700. For the purposes of sections 374.700 to 374.775, the following terms mean:

(1) "Admission to bail", an order from a competent court that the defendant be discharged from actual custody on bail and fixing the amount of the bail;

(2) "Bail bond agent", a surety agent or an agent of a property bail bondsman who is duly licensed pursuant to the provisions of sections 374.700 to 374.775, is employed by or is working under the authority of a licensed general bail bond agent;

(3) "Bail bond or appearance bond", a bond for a specified monetary amount which is executed by the defendant and a qualified licensee pursuant to sections 374.700 to 374.775 and which is issued to a court or authorized officer as security for the subsequent court appearance of the defendant upon the defendant's release from actual custody pending the appearance;

(4) "Department", the department of insurance of the state of Missouri;

(5) "General bail bond agent", a surety agent or a property bail bondsman who is licensed in accordance with sections 374.700 to 374.775 and who devotes at least fifty percent of his or her working time to the bail bond business in this state;

(6) "Insurer", any surety insurance company which is qualified by the department to transact surety business in Missouri;

(7) "Licensee", a bail bond agent or a general bail bond agent;

(8) "Property bail bondsman", a person who pledges United States currency, United States postal money orders or cashier's checks or other property as security for a bail bond in connection with a judicial proceeding, and who receives or is promised therefor money or other things of value;

(9) "Surety", a bail bond agent acting through a general bail bond agent, or a resident of the state and an owner of visible property, over and above that exempt from execution to the value of the sum in which bail is required which shall be worth that amount after the payment of debts and liabilities;

(10) "Surety bail bond agent", any person appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings, and who receives or is promised money or other things of value therefor;

(11) "Taking of bail" or "take bail", the acceptance by a person authorized to take bail of the undertaking of a sufficient surety for the appearance of the defendant according to the terms of the undertaking or that the surety will pay to the court the sum specified. Taking of bail or take bail does not include the fixing of the amount of bail and no person other than a competent court shall fix the amount of bail.

374.702. 1. No person shall engage in the bail bond business without being licensed as provided in sections 374.700 to 374.775.

2. No judge, attorney, court official, law enforcement officer, state, county or municipal employee, who is either elected or appointed, shall be licensed as a bail bond agent or a general bail bond agent.

3. A bail bond agent shall not execute or issue an appearance bond in this state without holding a valid appointment from a general bail bond agent and without attaching to the appearance bond an executed and prenumbered power of attorney referencing the general bail bond agent or insurer. A person licensed as a bail bond agent shall hold the license for at least one year prior to owning or being an officer of a licensed general bail bond agent.

4. A general bail bond agent shall not engage in the bail bond business:

(1) Without having been licensed as a general bail bond agent pursuant to sections 374.700 to 374.775;

(2) Except through an agent licensed as a bail bond agent pursuant to sections 374.700 to 374.775.

5. A general bail bond agent shall not permit any unlicensed person to solicit or engage in the bail bond business in the general bail bond agent's behalf, except for individuals who are employed solely for the performance of clerical, stenographic, investigative or other administrative duties which do not require a license pursuant to sections 374.700 to 374.775.

6. Any person who is convicted of a provision of this section is guilty of a class A misdemeanor. For any subsequent convictions, a person who is convicted of a provision of this section is guilty of a class D felony.

374.704. 1. Every applicant for a bail bond agent license or a general bail bond agent license shall apply on forms furnished by the department.

2. The application of a bail bond agent shall be accompanied by a duly executed general power of attorney issued by the general bail bond agent or insurer for whom the bail bond agent will be acting. Upon issuance of the license, a bail bond agent shall not issue an appearance bond exceeding the monetary amount for each recognizance which is specified in and authorized by the general power of attorney filed with the department until the department receives a duly executed qualifying power of attorney from the general bail bond agent or insurer evidencing or authorizing increased monetary limits or amounts for the recognizance.

3. An application for a general bail bond agent license shall be accompanied by proof that the applicant is a Missouri partnership, firm or corporation, or an individual who is a resident of the state. A corporation shall file proof that its most recent annual franchise tax has been paid to the department of revenue as provided in chapter 147, RSMo.

4. No license shall be granted without a showing that the applicant or applicant's insurer has proof of a three hundred thousand dollar bond or liability policy insuring against any damage to persons or property caused by the applicant.

374.715. Applications for examination and licensure as a bail bond agent or general bail bond agent shall be in writing and on forms prescribed and furnished by the department, and shall contain such information as the department requires. Each application shall be accompanied by proof satisfactory to the department that the applicant is a citizen of the United States, is at least twenty-one years of age, is of good moral character, and meets the qualifications for surety on bail bonds as provided by supreme court rule. Each application shall be accompanied by the examination and application fee set by the department. In addition, each applicant for licensure as a general bail bond agent shall furnish proof satisfactory to the department that the applicant, or, if the applicant is a corporation or partnership, that each officer or partner thereof has completed at least two years as a bail bond agent, as defined in sections 374.700 to 374.775, and that the applicant possesses liquid assets [of at least ten thousand dollars] according to the following schedule, along with a duly executed assignment [of ten thousand dollars] to the state of Missouri[, which] in the same amount:

(a) If the general bail bond agent employs three or less bail bond agents, at least fifteen thousand dollars;

(b) If the general bail bond agent employs four to ten bail bond agents, at least twenty-five thousand dollars;

(c) If the general bail bond agent employs eleven to fifteen bail bond agents, at least forty-five thousand dollars;

(d) If the general bail bond agent employs sixteen to twenty bail bond agents, at least sixty-five thousand dollars;

(e) If the general bail bond agent employs twenty-one to twenty-five bail bond agents, at least eighty-five thousand dollars;

(f) If the general bail bond agent employs twenty-six to fifty bail bond agents, at least one hundred thousand dollars;

(g) If the general bail bond agent employs over fifty bail bond agents, at least two hundred thousand dollars.



The assignment shall become effective upon the applicant's violating any provision of sections 374.700 to 374.775. The assignment required by this section shall be in the form, and executed in the manner, prescribed by the department.

374.717. No insurer or licensee, court or law enforcement officer shall:

(1) Pay a fee or rebate or give or promise anything of value in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond to:

(a) A jailer, policeman, peace officer, committing judge or any other person who has power to arrest or to hold in custody any person; or

(b) Any public official or public employee;

(2) Pay a fee or rebate or give anything of value to an attorney in bail bond matters, except in defense of any action on a bond;

(3) Pay a fee or rebate or give promise of anything of value to the principal or anyone in the principal's behalf;

(4) Accept anything of value from a principal except the premium and expenses incurred; provided that, the licensee shall be permitted to accept collateral security or other indemnity from the principal which shall be returned upon final termination of liability on the bond. If a forfeiture has occurred, the collateral security or other indemnity from the principal may be used to reimburse the licensee for any costs and expenses incurred associated with the forfeiture. The collateral security or other indemnity required by the licensee shall be reasonable in relation to the amount of the bond. Collateral may not be sold or otherwise transferred until the termination of liability on the bond. When a licensee accepts collateral, the licensee shall provide a prenumbered written receipt, which shall include in detail a full account of the collateral received by the licensee.

374.755. 1. The department may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any license required by sections 374.700 to 374.775 or any person who has failed to renew or has surrendered his license for any one or any combination of the following causes:

(1) Use of any controlled substance, as defined in chapter 195, RSMo, or alcoholic beverage to an extent that such use impairs a person's ability to perform the work of the profession licensed under sections 374.700 to 374.775;

(2) Having entered a plea of guilty or having been found guilty of a felony or crime involving moral turpitude;

(3) Use of fraud, deception, misrepresentation or bribery in securing any license [issued pursuant to sections 374.700 to 374.775] or in obtaining permission to take any examination [given or] required pursuant to sections 374.700 to 374.775;

(4) Obtaining or attempting to obtain any compensation as a member of the profession licensed by sections 374.700 to 374.775 by means of fraud, deception or misrepresentation;

(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of the profession licensed or regulated by sections 374.700 to 374.775;

(6) Violation of[, or assisting or enabling any other person to violate, any provision of sections 374.700 to 374.775 or of any lawful rule or regulation promulgated pursuant to sections 374.700 to 374.775] any provisions of, or any obligations imposed by, the laws of this state, department of insurance rules and regulations or aiding or abetting other persons to violate such laws, orders, rules or regulations;

(7) Transferring a license or permitting another person to use a license of the licensee;

(8) Disciplinary action against the holder of a license or other right to practice the profession regulated by sections 374.700 to 374.775 granted by another state, territory, federal agency or country upon grounds for which revocation or suspension is authorized in this state;

(9) Being finally adjudged insane or incompetent by a court of competent jurisdiction;

(10) Assisting or enabling any person to practice or offer to practice the profession licensed or regulated by sections 374.700 to 374.775 who is not currently licensed and eligible to practice [under] pursuant to sections 374.700 to 374.775;

(11) [Paying a fee or rebate, or giving or promising anything of value, to a jailer, policeman, peace officer, judge or any other person who has the power to arrest or to hold another person in custody, or to any public official or employee, in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or estreatment thereof;

(12) Paying a fee or rebate, or giving anything of value to an attorney in bail bond matters, except in defense of any action on a bond;

(13) Paying a fee or rebate, or giving or promising anything of value, to the principal or anyone in his behalf;

(14)] Participating in the capacity of an attorney at a trial or hearing of one on whose bond he is surety.

2. After the filing of such complaint, the proceedings shall be conducted in accordance with the provisions of chapter 621, RSMo. Upon a finding by the administrative hearing commission that one or more of the causes stated in subsection 1 of this section have been met, the department may [do any or all of the following:

(1) Censure the person involved;

(2) Place the person involved on probation on such terms and conditions as the department deems appropriate for a period not to exceed ten years;

(3) Suspend, for a period not to exceed three years, the license of the person involved;

(4) Revoke the license of the person involved.] admonish or censure a licensee, or suspend or revoke the license or enter into an agreement for a monetary or other penalty pursuant to section 374.280.

3. In lieu of filing a complaint at the administrative hearing commission, the department and the bail bond agent or general bail bond agent may enter into an agreement for a monetary or other penalty pursuant to section 374.280.

4. In addition to any other remedies available, the department may issue a cease and desist order or may seek an injunction in a court of law pursuant to the provisions of section 374.046 whenever it appears that any person is acting as a bail bond agent or general bail bond agent without a license.

374.757. 1. Any agent licensed by sections 374.700 to 374.775 who intends to apprehend any person in this state shall inform law enforcement authorities in the city or county in which such agent intends such apprehension, before attempting such apprehension. Such agent shall present to the local law enforcement authorities a certified copy of the bond and all other appropriate paperwork identifying the principal and the person to be apprehended. Local law enforcement may accompany the agent. Failure of any agent to whom this section applies to comply with the provisions of this section shall be a class A misdemeanor for the first violation and a class D felony for subsequent violations; and shall also be a violation of section 374.755 and may in addition be punished pursuant to that section.

2. Any agent licensed by sections 374.700 to 374.775 who wrongfully causes damages to any person or property, including but not limited to trespass, unlawful arrest, unlawful detainment or assault, shall be liable for such damages and may be liable for punitive damages.

374.764. 1. The director shall examine and inquire into all violations of the bail bond law of the state, and inquire into and investigate the bail bond business transacted in this state by any bail bond agent, general bail bond agent or surety recovery agent.

2. The director or any of his duly appointed agents may compel the attendance before him, and may examine, under oath, the directors, officers, bail bond agents, general bail bond agents, surety recovery agents, employees or any other person, in reference to the condition, affairs, management of the bail bond or surety recovery business or any matters relating thereto. He may administer oaths or affirmations and shall have power to summon and compel the attendance of witnesses and to require and compel the production of records, books, papers, contracts or other documents, if necessary.

3. The director may make and conduct the investigation in person, or he may appoint one or more persons to make and conduct the same for him. If made by a person other than the director, the person duly appointed by the director shall have the same powers as granted to the director pursuant to this section. A certificate of appointment, under the official seal of the director, shall be sufficient authority and evidence thereof for the person to act. For the purpose of making the investigations, or having the same made, the director may employ the necessary clerical, actuarial and other assistance.

374.782. 1. Sections 374.782 to 374.789 shall be known as "The Surety Recovery Agent Licensure Act".

2. As used in sections 374.782 to 374.789, the following terms mean:

(1) "Department", the department of insurance of the state of Missouri;

(2) "Fugitive recovery", the tracking down, recapturing and surrendering to the custody of a court a fugitive who has violated a bail bond agreement;

(3) "Surety recovery agent", a person not performing the duties of a sworn peace officer who tracks down, captures and surrenders to the custody of a court a fugitive who has violated a bail bond agreement, excluding a bail bond agent or general bail bond agent.

374.783. 1. No person shall hold himself or herself out as being a surety recovery agent in this state, unless such person is licensed in accordance with the provisions of sections 374.782 to 374.789.

2. The department shall have authority to license all surety recovery agents in this state. The department shall have control and supervision over the licensing of such agents and the enforcement of the terms and provisions of sections 374.782 to 374.789.

3. The department shall have power to:

(1) Set and determine the amount of the fees which sections 374.782 to 374.789 authorize and require. The fees shall be set at a level sufficient to produce revenue which shall not substantially exceed the cost and expense of administering sections 374.782 to 374.789; and

(2) Determine the sufficiency of the qualifications of applicants for licensure.

4. The department shall license all surety recovery agents in this state who meet the requirements of sections 374.782 to 374.789.

374.784. 1. A candidate for a surety recovery agent's license shall be at least twenty-one years of age. A candidate shall furnish evidence of such person's qualifications by completing an approved licensed surety recovery agent course with at least forty hours of minimum training at an institution of higher education or any institution approved by the department.

2. The basic course of training shall consist of at least forty hours of training, be taught by personnel with qualifications approved by the department and may include instruction in:

(1) The following areas of the law:

(a) Constitutional law;

(b) Procedures for arresting defendants and surrendering defendants into custody;

(c) Civil liability;

(d) The civil rights of persons who are detained in custody;

(e) The use of force;

(2) Procedures for field operations, including, without limitation:

(a) Safety and survival techniques;

(b) Searching buildings;

(c) Handling persons who are mentally ill or under the influence of alcohol or a controlled substance; and

(d) The care and custody of prisoners;

(3) The skills required regarding:

(a) Writing reports, completing forms and procedures for exoneration;

(b) Methods of arrest;

(c) Nonlethal weapons;

(d) The retention of weapons;

(e) Qualifications for the use of firearms;

(f) Defensive tactics; and

(g) Principles of investigation, including, without limitation, the basic principles of locating defendants who have not complied with the terms and conditions established by a court for their release from custody or the terms and conditions of a contract entered into with a surety;

(4) The following subjects:

(a) Demeanor in a courtroom;

(b) First aid used in emergencies; and

(c) Cardiopulmonary resuscitation.

3. No license shall be granted unless the candidate has proof of a one million dollar bond or liability policy insuring against any damages to persons or property caused by the candidate.

374.785. 1. The department shall issue a license to any surety recovery agent who is licensed in another jurisdiction and who has had no violations, suspensions or revocations of a license to engage in fugitive recovery in any jurisdiction, provided that such person is licensed in a jurisdiction whose requirements are substantially equal to, or greater than, the requirements for licensure of surety recovery agents in Missouri at the time the applicant applies for licensure, the applicant has proof of a one million dollar bond or liability policy and such general bail bond agent employs a surety recovery agent holding a valid Missouri surety recovery license.

2. For the purpose of surrender of the defendant, a surety may apprehend the defendant, anywhere within the state of Missouri, before or after the forfeiture of the undertaking without personal liability for false imprisonment or may empower any recovery agent to make apprehension by providing written authority endorsed on a certified copy of the undertaking and paying the lawful fees.

3. The surety or recovery agent shall inform the local law enforcement in the county or city where such agent is planning to enter a residence. Such agent shall have a certified copy of the bond and all appropriate paperwork to identify the principal. Local law enforcement, when notified, may accompany the surety or recovery agent to that location to keep the peace if an active warrant is effective for a felony or misdemeanor. If a warrant is not active, the local law enforcement officers may accompany the surety or recovery agent to such location. Failure to report to the local law enforcement agency is a class A misdemeanor. For any subsequent violations, failure to report to the local law enforcement agency is a class D felony.

4. Every applicant for a license pursuant to this section, upon making application and showing the necessary qualifications as provided in this section, shall be required to pay the same fee as the fee required to be paid by resident applicants. Within the limits provided in this section, the department may negotiate reciprocal compacts with licensing entities of other states for the admission of licensed surety recovery agents from Missouri in other states.

374.786. 1. Every person licensed pursuant to sections 374.782 to 374.789 shall, on or before the license renewal date, apply to the department for a licensure renewal for the ensuing licensing period. The application shall be made on a form furnished to the applicant and shall state the applicant's full name, the applicant's business address, the address at which the applicant resides, the date the applicant first received a license and the applicant's surety recovery agent identification number, if any.

2. A blank form for the application for licensure renewal shall be mailed to each person licensed in this state at the person's last known address. The failure to mail the form of application or the failure of a person to receive it does not, however, relieve any person of the duty to be licensed and to pay the license fee required nor exempt such person from the penalties provided for failure to be licensed.

3. Each applicant for licensure renewal shall accompany such application with a licensure renewal fee to be paid to the department for the licensing period for which licensure renewal is sought.

4. The department may refuse to issue or renew any license required pursuant to sections 374.782 to 374.789 for any one or any combination of causes stated in section 374.787. The department shall notify the applicant in writing of the reasons for refusal and shall advise the applicant of his or her right to file a complaint with the administrative hearing commission as provided by chapter 621, RSMo.

374.787. 1. The department may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any surety recovery agent or any person who has failed to renew or has surrendered his or her license for any one or any combinations of the following causes:

(1) Violation of any provisions of, or any obligations imposed by, the laws of this state, department of insurance rules and regulations, or aiding or abetting other persons to violate such laws, orders, rules or regulations;

(2) Having been convicted of a felony or crime involving moral turpitude;

(3) Using fraud, deception, misrepresentation or bribery in securing a license or in obtaining permission to take any examination required by sections 374.782 to 374.789;

(4) Obtaining or attempting to obtain any compensation as a surety recovery agent by means of fraud, deception or misrepresentation;

(5) Acting as a surety recovery agent or aiding or abetting another in acting as a surety recovery agent without a license;

(6) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions of duties of a surety recovery agent;

(7) Having revoked or suspended any license by another state.

2. After the filing of the complaint, the proceedings shall be conducted in accordance with the provisions of chapter 621, RSMo. Upon a finding by the administrative hearing commission that one or more of the causes stated in subsection 1 of this section have been met, the department may suspend or revoke the license or enter into an agreement for a monetary or other penalty pursuant to section 374.280.

3. In lieu of filing a complaint with the administrative hearing commission, the department and the surety recovery agent may enter into an agreement for a monetary or other penalty pursuant to section 374.280.

4. In addition to any other remedies available, the department may issue a cease and desist order or may seek an injunction in a court of law pursuant to section 374.046 whenever it appears that any person is acting as a surety recovery agent without a license.

374.788. A surety recovery agent having probable grounds to believe a subject, free on his or her bond, has failed to appear as directed by a court, has breached the terms of the subject's surety agreement or has taken a substantial step toward absconding, may utilize all lawful means to arrest the subject. To surrender a subject to a court a licensed surety recovery agent, having probable grounds to believe the subject is free on their bond, may:

(1) Detain a subject in a reasonable manner, for a reasonable time not to exceed seventy-two hours;

(2) Transport a subject in a reasonable manner from state to state and county to county to a place of authorized surrender; and

(3) Enter upon private or public property in a reasonable manner to execute an arrest of a subject.

374.789. 1. A person is guilty of a class D felony if he or she does not hold a valid surety recovery agent's license or a bail bondsman's license and commits any of the following acts:

(1) Holds himself or herself out to be a licensed surety recovery agent within this state;

(2) Claims that he or she can render surety recovery agent services; or

(3) Engages in fugitive recovery in this state.

2. Any person who engages in fugitive recovery in this state and wrongfully causes damage to any person or property, including, but not limited to, trespass, unlawful arrest, unlawful detainment or assault, shall be liable for such damages and may be liable for punitive damages.

590.132. No person shall be commissioned or employed as a peace officer unless he or she is a resident of Missouri.



Missouri House of Representatives