hb4385 intr

H. B. 4385

(By Delegates Marshall, Fleischauer, Houston,

C. White, Modesitt, Johnson and Compton)

[Introduced February 3, 2000; referred to the

Committee on Government Organization then Finance.]

A BILL to amend chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirty-eight, relating to providing for the licensure and regulation of bail-enforcement agents; creating a misdemeanor offense for violating provisions of article; and establishing criminal penalties and civil cause of action.

Be it enacted by the Legislature of West Virginia:

That chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirty-eight, to read as follows:
ARTICLE 38. LICENSURE AND REGULATION OF BAIL-ENFORCEMENT AGENTS.
§30-38-1. Definitions.

For the purposes of this article, except where the context clearly requires otherwise, the following terms shall have the meanings ascribed to them:

(1) "Applicant" means a person who files a completed application with the office of the secretary of state as required in sections two and three of this article for licensure to act as a bail-enforcement agent in the state of West Virginia;

(2) "Bail enforcement" means engaging in the apprehension and return of a suspect who is released on bail and who has failed to appear at any stage of a criminal proceeding;

(3) "Bail-enforcement agent" means any person who, on behalf of a bail bond holder or surety agent, engages in the apprehension and return of persons who are released on bail and who have failed to appear at any stage of the proceeding as directed by a court with jurisdiction over the person or who are released on bail and have had their bail revoked;

(4) "Licensed bail-enforcement agent" means any person who is licensed as a bail-enforcement agent by the secretary of state;

(5) "Person" means a natural person; and

(6) "Secretary" shall mean the secretary of state.
§30-38-2. Eligibility requirements for persons seeking licensure as a bail-enforcement agent; exceptions.
(a) In order to be eligible to be licensed as a bail-enforcement agent, an applicant shall:

(1) Be at least eighteen years of age;

(2) Have maintained a residence in this state for more than one year immediately preceding the date of application;

(3) Not have been convicted in any jurisdiction of any felony, crime involving moral turpitude or illegal use or possession of a dangerous weapon for any of which a full pardon or similar relief has not been granted under the laws of the United States, the state of West Virginia or any state or country;

(4) Not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease which has not been restored;

(5) Not suffer from habitual drunkenness or from controlled substance addiction or dependence;

(6) Have a minimum of one year of education or training in any one of the following areas or some combination thereof:

(A) Courses or training relevant to the criminal justice system at an accredited college or university;

(B) Employment as a member of any United States government investigative agency, employment as a member of a state or local law-enforcement agency or service as a sheriff;

(D) Any other substantially equivalent training or experience;

(7) Present satisfactory evidence that the applicant has, if he or she carries a firearm in the performance of his or her duties as a bail-enforcement agent, completed a training course in firing and handling a handgun. The successful completion of any of the following courses fulfills this training requirement:

(A) Any national rifle association handgun safety course;

(B) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school using instructors duly certified by the institution;

(C) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the national rifle association; or

(D) Any handgun training or safety course or class conducted by any branch of the United States military, reserve or national guard.

(b) The provisions of this article for obtaining licensure as a bail-enforcement agent do not apply to any person who has been approved by a circuit court of this state to act as a bail bondsman for at least two years prior to the effective date of this article.

(c) No person convicted of a crime involving domestic violence may be licensed as a bail-enforcement agent.
§30-38-3. Application requirements for a license to act as a licensed bail-enforcement agent.

(a) To be licensed as a bail-enforcement agent, each applicant shall complete and file a written application, under oath, with the secretary of state and in a form as the secretary may prescribe.

(b) On the application each applicant shall provide the following information: The applicant's name, birth date, citizenship, physical description, military service, criminal history, current residence, residences for the preceding ten years and any other information requested by the secretary of state in order to comply with the requirements of this article.

(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrong, either done or threatened, against the government of the United States;

(2) Information about offenses against the laws of West Virginia or any state; and

(3) Any facts as may be required by the secretary to determine the good character, competency and integrity of the applicant.

(d) As part of the application, each applicant shall give the secretary of state permission to review the records held by the West Virginia state police for any convictions that may be on record for the applicant.

(e) For each applicant for a license, the application shall be accompanied by two recent full-face photographs and one complete set of the person's fingerprints which shall be certified by a law-enforcement officer of this state.

(f) For each applicant, the application shall be accompanied by:

(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct the bail-enforcement business; and

(2) A nonrefundable application processing service charge of fifty dollars, which shall be payable to the secretary of state to offset the cost of license review and criminal investigation background report from the West Virginia state police, along with a license fee of one hundred dollars. The license fee shall be deposited to the general revenue fund and shall be refunded only if the license is denied. This license shall be renewable on a yearly basis.

(g) All applicants for bail-enforcement agent licenses shall file in the office of secretary of state a surety bond. The bond shall:

(1) Be in the sum of fifty thousand dollars and conditioned upon the faithful and honest conduct of the business by the applicant;

(2) Be written by a company recognized and approved by the insurance commissioner of West Virginia and approved by the attorney general of West Virginia with respect to its form; and

(3) Be in favor of the state of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

(h) Any person claiming against the bond required by subsection (g) of this section for a violation of this article may maintain an action at law against any licensed bail-enforcement agent and against the surety. The surety shall be liable only for damages awarded under section ten of this article and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person under this article may not exceed the amount of the bond.
§30-38-4. Temporary license for interstate bail enforcement.
(a) Persons from states other than West Virginia seeking to act as bail-enforcement agents within the state may do so provided that the applicant for the temporary license has a background substantially similar to that which is required to become licensed in the state of West Virginia and is approved by the secretary of state. Applicants for temporary licensure shall be subject to the same application process, fees and surety bond promulgated by section three of this article. Applicants for temporary licenses must post a standing surety bond in the sum of fifty thousand dollars with the secretary of state which is subject to the same rules as the surety bond required by subsection (g), section three of this article.

(b) A license granted under the provisions of this section shall be in effect for thirty days from the date the certificate of license is issued and may be renewed for a period of thirty days by the secretary of state upon application, in a form as the secretary may prescribe, and upon payment of the fee and the filing of the surety bond. At the time of applying for renewal of a license, the secretary of state may require any person to provide additional information to reflect any changes in the original application or any previous renewal.

§30-38-5. Pursuit and apprehension; notification of sheriff or state police required; entry of private home prohibited.

(a) Except as otherwise provided in this section, no less than eight hours before engaging in the apprehension and return of a suspect who is released on bail and who has failed to appear at any stage of the proceedings to answer the charge before the court in which he or she may be prosecuted, a bail-enforcement agent shall notify the sheriff of the county in which the agent will be apprehending said suspect of the date, time and place of intended apprehension.

(b) The notice requirement in subsection (a) of this section is not required of a bail-enforcement agent who discovers the whereabouts of a suspect within the state and takes up immediate pursuit of the suspect in order to avoid flight of the suspect, if the agent, as soon as practicable, by telephone, radio or other means, gives notice of the immediate and continuing pursuit and intended apprehension to the sheriff of the county or the state police headquarters in the county in which the pursuit begins and in any county into which the pursuit continues.

(c) The notice requirement in subsection (a) of this section is not required of a bail-enforcement agent who enters the state in immediate pursuit of a suspect released on bail, and who as soon as practicable after entering the state, gives notice by telephone, radio or other means, of the continuing pursuit and intended apprehension to the sheriff of the county or the state police headquarters in the county in which the pursuit begins and in any county into which the pursuit continues.

(d) Notice to the law-enforcement offices shall include the offense for which the suspect is to be returned, and any other criminal history of the suspect known to the agent.

(e) Under no circumstances may a bail-enforcement agent apprehend a suspect released on bail until the agent has notified the sheriff or state police headquarters in the county in which the apprehension is to occur.

(f) Without the presence and cooperation of a law-enforcement officer, a bail-enforcement agent may not enter a private residence to pursue or apprehend a suspect, without prior invitation of a resident.
§30-38-6. Prohibitions.

(a) No person may engage in the bail-enforcement business without having first obtained from the secretary of state a license to conduct the business.

(b) All licensed persons are prohibited from transferring their licenses to an unlicensed person. This prohibition includes contracting or subcontracting with an unlicensed person to conduct the bail-enforcement business.

(1) Employ any individual to perform the duties of a bail-enforcement agent who has not first complied with all provisions of this article and the rules promulgated by the secretary;

(2) Falsely represent that a person is the holder of a valid license;

(3) Make a false report with respect to any matter with which he or she is employed; or

(4) Authorize or permit another person to violate any provision of this article or any rule of the secretary of state adopted for this article.

(d) A firm, a partnership, an association, a limited liability company or a corporation may not be licensed as a bail-enforcement agent.
§30-38-7. Authority of secretary of state.

(a) When the secretary of state is satisfied as to the good character, competency and integrity of an applicant, he or she shall issue and deliver to the applicant a certificate of license. Each license issued is for a period of one year and is revocable at all times for cause shown pursuant to subsection (b) of this section or any rules promulgated pursuant thereto.

(b) The secretary of state shall propose for promulgation in accordance with the provisions of chapter twenty-nine-a of this code legislative rules as may be necessary for the administration and enforcement of this article and for the issuance, suspension and revocation of licenses issued under the provisions of this article. The secretary of state shall afford any applicant an opportunity to be heard in person or by counsel when a determination is made to deny, revoke or suspend any applicant's license or application for license, including a renewal of a license. The applicant has fifteen days from the date of receiving written notice of the secretary's adverse determination to request a hearing on the matter of denial, suspension or revocation: Provided, That the secretary may, forthwith, suspend a licensee's license upon a finding that a licensee has acted in his or her capacity as a bail-enforcement agent in violation of the criminal laws of this state or in a manner which endangers public health or safety. The action of the secretary of state in granting, renewing or in refusing to grant or to renew a license, is subject to review by the circuit court of Kanawha County or other court of competent jurisdiction.

(c) At any hearing before the secretary of state to challenge an adverse determination by the secretary of state on the matter of a denial, suspension or revocation of a license, if the adverse determination is based upon a conviction for a crime which would bar licensure under the provisions of this article, the hearing shall be an identity hearing only and the sole issue which may be contested is whether the person whose application is denied or whose license is suspended or revoked is the same person convicted of the crime.
§30-38-8. Renewal of license.

A license granted under the provisions of this article shall be in effect for one year from the date the certificate of license is issued and may be renewed for a period of one year by the secretary of state upon application, in the form as the secretary may prescribe, and upon payment of the fee and the filing of the surety bond. At the time of applying for renewal of a license, the secretary of state may require any person to provide additional information to reflect any changes in the original application or any previous renewal.
§30-38-9. Penalties.
(a) Any person, licensed or unlicensed, who violates any of the provisions of this article is guilty of a misdemeanor and, upon conviction, shall be fined not less than five hundred dollars nor more than five thousand dollars or be confined in jail for not more than one year, or both.

(b) In the case of a violation of subsection (a), section six of this article, a fine shall be assessed for each day that an individual conducted the bail-enforcement business.
§30-38-10. Action for damages.

Any individual who is injured or suffers property damage by a violation of this article may bring an action for recovery of damages, including punitive damages plus reasonable attorney's fees and court costs.

§30-38-11. Disposition of fees.

All fees collected hereunder by the secretary of state shall be paid to the state treasurer and deposited in the general revenue fund, except the fifty-dollar application fee, which shall be deposited with the office of the secretary of state.

NOTE: The purpose of this bill is to require bail-enforcement agents to be licensed by the state, and to regulate the practice of bail enforcement. Bail-enforcement agents would be required to notify law-enforcement officers of pursuit and intended apprehension of a suspect. The bill would provide for criminal penalties for violations of the article, and would establish a cause of action for injury or property damages resulting from violations.

This article is new; therefore, strike-throughs and underscoring have been omitted.