Delaware General Assembly

AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO BAIL AND BAIL AGENTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein):

(1) ‘Bail Agent’ or ‘licensee’ means a person required to be licensed under the laws of this State to sell, solicit or negotiate contracts of surety bail bond insurance and appointed by a surety insurer that is authorized to transact business in this State to sell, solicit or negotiate contracts of surety bail bond insurance. The term ‘bail agent’ shall also be deemed to include the terms ‘b ail bondsman’, ‘bail bond agent’, ‘bail bonding agent’ or any other similar term or phrase intended to mean a person or entity performing the function of issuing bail bonds in the State of Delaware. The term bail agent does not include the term ‘bail enforcement agent’ as the same is used in Title 24, Chapter 55 of the Delaware Code.

(4) ‘Court’ means any court of this State that has the power to set bail to enforce the appearance of a defendant in a criminal proceeding.

(6) ‘Designated bail agent’ means the licensed bail agent who is the head or manager of a bail agent business entity that employs one or more licensed bail agents.

(7) ‘Home state’ means the District of Columbia or any state or territory of the United States in which a bail agent maintains his or her principal place of residence or principal place of business and is licensed to act as a bail agent.

(10) ‘Nonresident bail agent’ means any licensed bail agent whose principal place of business or residence is located in any state or territory other than Delaware.

(12) ‘Property bail agent’ means any person, not appointed by a surety insurer, who pledges United States currency, United States postal money orders or cashier's checks or other property as security or surety for a bail bond in connection with a judicial proceeding and receives or is promised therefor money or other things of value. The terms ‘bail agent’ and ‘licensee’ shall include property bail agents except where this subchapter expressly provides otherwise. A property bail agent shall be obligated to pay any and all taxes, fees or the like for which any insurer would be obligated under this Title. A property bail agent shall be subject to the jurisdiction of the Department of Insurance and be obligated to meet all of the requirements of this subchapter and Chapter 17 of this Title insofar as they apply to bail agents.

(a) A person applying for a bail agent producer license shall make application to the Commissioner on the Uniform Application or on forms prescribed by the Commissioner for license types and lines of authority not available on the Uniform Application and shall declare under penalty of denial, suspension or revocation of the license that the statements made in the application are true, correct and complete to the best of the individual's knowledge and belief.

(b) Before approving the application, the Commissioner shall find that the individual:

(1) is at least 18 years of age;

(2) has not committed any act that is a ground for denial, suspension or revocation set forth in this Chapter and § 1721 of this Title;

(3) has paid the fees set forth in Chapter 7 of this Title;

(4) has successfully passed the examinations for the lines of authority for which the person has applied, unless specifically exempted from such examination by this subchapter;

(5) has identified a home state as a principal place of business;

(6) has not been suspended or prohibited from acting as a bail agent by any court; and

(7) has, in the case of a property bail agent, established that he or she is financially responsible pursuant to such rules and regulations as may be established by the Commissioner and provided such surety bond or deposit in lieu thereof as required by § __________ hereof.

(c) Except where prohibited by state or federal law, by submitting an application for license, the applicant shall be deemed to have appointed the Commissioner as the agent for service of process on the applicant in any action or proceeding arising in this State out of or in connection with the exercise of the license. Such appointment of the Commissioner as agent for service of process shall be irrevocable during the period within which a cause of action against the applicant may arise out of transactions with respect to subjects of insurance in this State. Process shall be served upon the Commissioner or such other person(s) as the Commissioner shall designate by rule or regulation.

(d) Each application shall further contain a statement of the applicant’s criminal history, dated within 45 days of the application, which the applicant shall obtain from the Delaware State Bureau of Identification pursuant to § 8513(a)(2) of Title 11 of the Delaware Code.

(e) All premiums, return premiums or other funds received in any manner by a bail agent shall be held in a fiduciary capacity and shall be accounted for by such bail agent.

(f) A nonresident person shall receive a nonresident bail agent license if:

(1) the person is currently licensed as a bail agent and in good standing in his or her home state;

(2) the person has submitted the proper request for licensure and has paid the fees required by Chapter 7 of this Title;

(3) the person has submitted or transmitted to the Commissioner the application for licensure that the person submitted to his or her home state, or in lieu of the same, a completed Uniform Application or forms prescribed by the Commissioner for license types and lines of authority not available on the Uniform Application; and

(4) the person's home state awards nonresident bail agent licenses to residents of this State on the same basis as this State.

(5) Except where prohibited by state or federal law, by submitting an application for license, the applicant shall be deemed to have appointed the Commissioner as the agent for service of process on the applicant in any action or proceeding arising in this State out of or in connection with the exercise of the license. Such appointment of the Commissioner as agent for service of process shall be irrevocable during the period within which a cause of action against the applicant may arise out of transactions with respect to subjects of insurance in this State. Process shall be served upon the Commissioner or such other person(s) as the Commissioner shall designate by rule or regulation.

(6) The Commissioner may verify the nonresident’s licensing status through the Producer Database maintained by the National Association of Insurance Commissioners, its affiliates or subsidiaries.

(7) A nonresident bail agent who moves from one state to another state or a resident bail agent who moves from this State to another state shall file a change of address and provide certification from the new resident state within thirty (30) days of the change of legal residence for which no license fee or license application is required.

(8) As a condition to continuation of a non-resident bail agent license issued under this §, the licensee shall maintain a resident bail agent license in his or her home state. The non-resident bail agent license issued under this § shall terminate and be surrendered immediately to the Department if the home state bail agent license terminates for any reason, unless the bail agent has been issued a license as a resident bail agent in his or her new home state. Notification of such change, including both the old and new address, to the Department must be made as soon as possible, but no later than thirty (30) days after obtaining a new state resident license. A new state resident license is required for a non-resident license issued by the Department to remain valid. The new state resident license must have reciprocity with this State in order for the non-resident license not to terminate.

(g) Nothing contained in this subchapter or Chapter 17 of this Title shall apply to any person who may pledge money or property for no fee or remuneration directly with a court on behalf of a defendant under such rules or procedures as may be approved by the court.

(h) The applicant for a bail agent license shall bear all costs associated with the application or any re-application.

(a) A business entity advertising and acting as a bail agent is required to obtain a business entity insurance license. All surety bail bond contract transactions under the business entity license must be completed by a licensed bail agent of this State.

(b) Application for a business entity license shall be made using the Uniform Business Entity Application or on forms prescribed by the Commissioner for license types and lines of authority not available on the Uniform Business Entity Application.

(c) Before approving the application, the Commissioner shall find that:

(1) the business entity has paid the fees set forth in Chapter 7 of this Title; and

(2) the business entity has designated a licensed bail agent or producer licensed under Chapter 17 of this Title responsible for the business entity's compliance with the insurance laws, rules and regulations of this State.

(d) The Commissioner may require any documents reasonably necessary to verify the information contained in an application.

(a) At the time of the application for license as a bail agent, the applicant shall file with the Department a bond executed and issued by a surety insurer authorized to transact business in the State in the minimum amount of $20,000, which bond shall secure the faithful performance of his or her duties as a bail agent. A bail agent license shall be automatically suspended if the bond is not in force or if the security referred to in subsection (c) of this Section is impaired or unavailable to the Department.

(b) The bond shall have the following characteristics:

(1) The bond must be conditioned upon a full accounting and payment to the person entitled thereto of money, property or other matters coming into the licensee’s possession through bail bond transactions under the license.

(2) The bond shall be in favor of the State and shall specifically authorize recovery by the Commissioner of the damages sustained if the licensee violates any of the terms of the license or the applicable laws and regulations of this State.

(3) The aggregate liability of the surety for all damages shall not exceed the amount of the bond.

(4) The bond must remain in force until released by the Commissioner, or cancelled by the surety. The surety may cancel the bond upon thirty (30) days’ written notice to the licensee and the Commissioner provided that the surety shall remain liable for any obligation arising under the bond prior to the effective date of cancellation or termination.

(c) In lieu of a surety bond, an applicant for licensure or a licensee may assign or post cash, negotiable securities, irrevocable letter(s) of credit or similar instruments under such terms as may be approved by the Department.

(a) Any natural person who intends to apply for a license as a bail agent, must personally take and pass a written examination of his or her competence to act as such. After passing the examination, the person may apply to the Commissioner for a bail agent license.

(b) The scope of the examination shall encompass all aspects of the bail bond business as shall be determined by the Department.

(c) The Department may make arrangements for administration and grading by an independent testing service.

(d) Any individual who fails to appear for the examination as scheduled or fails to pass the examination may reapply for a re-examination and remit all required fees and forms before being permitted to take the re-examination.

(e) All examination score reports are valid for a period of twelve (12) months from the date of examination.

(f) A bail agent, whose license lapses and whose license is not suspended or revoked is exempt from retaking the examination required by this Section if the bail agent applies for and is reinstated within twelve (12) months after the date of lapse. All fees and fines associated with the lapsed and reinstated license must be paid in full prior to the Department’s approval of the request for reinstatement. However, a penalty of double the regular license fee shall be required for any renewal fee received after the due date and within the first six (6)6 months from the due date of the renewal fee. A licensee who does not pay within six (6) months of the due date but pays prior to the expiration of twelve (12) months from the due date shall be subject to a fine of not less than $200 and not more than $1,000 prior to the reinstatement of the license.

(a) Upon the Department’s determination that the application is complete, the applicant has passed all required examinations and is otherwise qualified for the license applied for, the Department shall thereupon issue the license.

(b) A bail agent license shall remain in effect:

(1) unless revoked or suspended;

(2) as long as the fee set forth in Chapter 7 of this Title is paid and educational requirements as established by law or regulation for bail agents are met by the due date; and/or

(3) unless the bail agent fails to procure or maintain in full force and effect a bond required by § 4336 herein.

(c) If a bail agent fails to comply with subsection (b) above, the Department shall, without a hearing, deem the bail agent’s license administratively lapsed until the requirements of subsection (b) are met and the bail agent has satisfied all monetary and/or educational obligations and costs necessary under § 1707(g) of this Title to restore the license, provided that such action is taken within one (1) year of the date the license is administratively suspended. After one year, the bail agent’s license shall be deemed revoked and the bail agent would be required to reapply for licensure under § 4333 as a new applicant.

(d) If the applicant for a bail agent license fails to meet the requirements of this subchapter or any applicable regulation, the Department shall refuse to issue the license and shall notify the applicant of such refusal stating the grounds for the refusal. The notice of refusal shall constitute an order of the Commissioner as provided for in § 323 of this Title.

(f) The license shall contain the licensee's name, address, and personal identification number, and the date of issuance, the lines of authority, the expiration date and any other information the Department deems necessary.

(g) Licensees shall inform the Department by any means approved by the Department of a change of address within thirty (30) days of the change. Failure to timely inform the Department of a change in legal name or address shall result in a penalty pursuant to § 1712(d) of this Title.

(h) The Commissioner may issue a new license for any lost, stolen or destroyed license issued pursuant to this Chapter upon written request from the licensee and payment of appropriate fees for such duplicate license.

(a) In order to assist in the performance of the Department's duties, the Commissioner may contract with nongovernmental entities, including the National Association of Insurance Commissioners (NAIC) or any affiliates or subsidiaries that the NAIC oversees, to perform any ministerial functions, including the collection of fees, related to producer licensing that the Commissioner and the nongovernmental entity may deem appropriate.

(b) The Commissioner may participate, in whole or in part, with the NAIC, or any affiliates or subsidiaries the NAIC oversees, in a centralized producer license registry where bail agent licenses and appointments may be centrally or simultaneously affected for all states that require a bail agent license and participate in such centralized producer license registry. If the Commissioner finds that participation in such a centralized producer license registry is in the public interest, the Commissioner may adopt by rule any uniform standards and procedures as necessary to participate in the registry including the central collection of all fees for licenses or appointments that are processed through the registry.

(a) Each insurer appointing a bail agent shall file an appointment with the Department and pay the same appointment fee as for producers under Chapter 17 of this Title.

(b) Each appointment shall remain in effect until the bail agent’s license is revoked or terminated, or the appointment is terminated by the insurer.

(a) An insurer may terminate an appointment at any time. The insurer shall promptly give written notice of termination and the effective date thereof to the Department, on forms approved by the Department and to the bail agent if reasonably possible. The Department may require the insurer to provide reasonable proof that the insurer has also given such a notice to the agent unless there are valid reasons why such notice can or should not be given by the insurer.

(b) Accompanying each notice of termination given to the Department, the insurer shall file a statement of the cause, if any, for the termination. Any information or documents so disclosed to the Department shall be deemed a confidential document, disclosure of which shall be governed by the provisions of § 1716(f) of this Title.

(c) No agreement between an insurer and a bail agent or between an employing bail agent and a licensed bail agent shall affect the Department’s termination of the appointment or license if the termination is requested by the insurer or the employing bail agent.

(d) The Department shall notify the courts upon the termination, suspension or revocation of a bail license.

(e) A bail agent’s license that is otherwise in good standing with the Department shall be immediately suspended and be subject to revocation by the Department upon notice from a court that the bail agent has been struck from the list of approved bail agents by the court(s).

(a) A bail agent shall not concurrently be employed or licensed by more than one bail agent or bail agent business entity.

(b) The designated bail agent is responsible for the acts or omissions of the bail agents employed or operating under the designated bail agent’s authority only insofar as the bail agent is acting within the scope of his or her employment or authority.

(c) The bail agent shall maintain his or her office with that of the designated bail agent by who he or she is employed.

(d) The bail agent’s license must remain in the custody of the designated bail agent by whom he or she is employed. Upon termination of such employment as a bail agent, the designated bail agent shall give written notice of the reasons thereof to the Department.

(e) It shall be unlawful for a bail agent employed by an entity or appointed by an insurer to post cash on behalf of a defendant.

(f) It shall be unlawful for a bail agent to be employed by or accept money for the purpose of posting cash bail from any person, firm or entity that loans money or takes collateral for the loan of money for the purpose of posting cash on behalf of a defendant.

(a) Every resident bail agent shall have and maintain in this state a principal place of business accessible to the public. The address of this principal place of business must appear upon the application for a license and upon the license, when issued, and the licensee shall promptly notify the Department of any change in that address. This subsection does not prohibit a licensee from conducting business from a residence in this State.

(b) The licenses of the designated bail agent, and of those bail agents employed or authorized by the designated bail agent, and the fees charged for services rendered, must be conspicuously displayed in the principal place of business in a place or area customarily open to the public.

(c) All records of the designated bail agent and those bail agents employed or authorized to operate under the designated bail agent’s auspices shall maintain all of their business records at the principal place of business identified in the license issued by the Department.

(d) A nonresident bail agent is not required to maintain a place of business in this State but is otherwise subject to all of the requirements and obligations imposed on resident bail agents under this subchapter with respect to the bail agent’s activities in this State.

(a) Bail bond rates are subject to the provisions of Chapter 25 of this Title.

(b) It is unlawful for a bail bond agent to execute a bail bond without charging a premium therefor, and the premium rate may not exceed or be less than the premium rate as filed with and approved by the Department.

(c) It is unlawful for any bail agent to charge any administrative fee, service charge, company or agent fee or the like not filed and approved pursuant to Chapter 25 of this Title.

(d) The bond may contain provisions to reimburse the bail agent personally, or permit the bail agent to have a right of action against the defendant or any indemnitor, for actual expenses incurred in good faith, by reason of breach by the defendant of any of the terms of the written agreement under which and pursuant to which the undertaking of bail or bail bond was written. If there is no written agreement, or an incomplete writing, the bail agent may seek enforcement of such legal or equitable rights against the defendant and any of the defendant’s indemnitors as may be permitted by law. Such reimbursement or right of action may not exceed the principal sum of the bond or undertaking, plus any reasonable expenses that may be verified by receipt in a total amount of not more than the principal sum of the bond or undertaking, incurred in good faith by the bail agent, its agents, licensees and employees by reason of the defendant’s breach.

(e) Property bail agents, in addition to the requirements set forth in this Section, shall not be permitted to issue a bond without first obtaining the approval of their charge or commission schedule from the Department. Likewise, any change or modification to the approved charge or commission shall be submitted to the Department for approval prior to any use thereof. Property bail agents shall be required to maintain a written disclosure statement approved by the Department, of their approved charges or commissions and shall provide a copy of said written disclosure to every prospective client prior to accepting the payment for the bond from the prospective client.

(a) A bail agent may accept collateral or security in connection with a bail transaction if the collateral or security is reasonable in relation to the face amount of the bond. The bail agent shall not transfer the collateral or security to any person other than a bail agent licensed pursuant to this subchapter or to a surety insurer holding a valid certificate of authority issued by the Department. The collateral shall not be transported or otherwise removed from this State.

(b) Any person who receives the collateral:

(1) Shall be deemed to hold the collateral in a fiduciary capacity to the same extent as a bail agent; and

(2) Shall retain, return and otherwise possess the collateral in accordance with the provisions of this subchapter.

(c) The collateral or security shall be received by the bail agent in a fiduciary capacity, and, until such time as there is a default of appearance by the defendant and demand for a forfeiture of the bail, the collateral or security shall be kept separate and apart from any other funds or assets of the licensee. Any collateral or security received by the bail agent shall be returned to the person, or that person’s assignee or designated representative, who deposited it with the bail agent as soon as the obligation which was secured by the collateral or security, is discharged and all fees owed to the bail agent have been paid. The bail agent or any surety insurer having custody of the collateral or security shall, immediately after the bail agent or surety insurer receives a request for return of the collateral or security from the person who deposited the collateral or security, determine whether the bail agent or surety insurer has received notice that the obligation is discharged. If the collateral or security is deposited to secure the obligation of a bond, it must be returned immediately after receipt of the request for return of the collateral or security and notice of the entry of any order by an authorized official by virtue of which liability under the bond is terminated or upon payment of all fees owed to the bail agent, whichever is later. A certified copy of the order from the Court wherein the bail or undertaking was ordered exonerated shall be deemed prima facie evidence of exoneration or termination of liability.

(d) When accepting real property as collateral for a bond, it shall be unlawful for a bail agent to require a transfer of title to the real property as a condition of issuing a bail bond. The bail agent may require the defendant, or anyone agreeing to post real property on the defendant’s behalf, to provide such certifications as may be necessary to establish title and unencumbered value, at the defendant’s expense, together with the appropriate security documents that may be necessary to establish a lien interest in the real property by the bail agent. It shall be unlawful for the bail agent to provide, directly or indirectly, title or lien services to the defendant for a fee or to receive money or anything of value for a referral to an independent person or entity for such service.

(e) When accepting personal property as collateral for a bond, a bail agent may not require a transfer of title to the personal property as a condition of issuing a bail bond. The bail agent may require the defendant, or anyone agreeing to post personal property on the defendant’s behalf, at their expense, to provide such financing statements, motor vehicle titles with a lien stamp or the like that may be necessary to establish a lien interest in the personal property by the bail agent. It shall be unlawful for the bail agent to provide, directly or indirectly, title or lien services to the defendant for a fee or to receive money or anything of value for a referral to an independent person or entity for such service.

(f) Upon release or exoneration of the bail obligation, the bail agent shall be required to provide such release documents as may be required to discharge any lien of record obtained under subsections (d) and (e) above. The bail agent shall not charge any fee for such service but may require that the defendant pay any direct costs of document preparation and filing fees.

(g) If the amount of any collateral received in a bail transaction exceeds the amount of any bail forfeited by the defendant for whom the collateral was accepted, the bail agent or any surety insurer having custody of the collateral shall, immediately after the bail is forfeited, return to the person who deposited the collateral the amount by which the collateral exceeds the amount of the bail forfeited. Any collateral returned to a person pursuant to this subsection is subject to a claim for fees, if any, owed to the bail agent returning the collateral.

(h) If a bail agent accepts collateral, he shall give a written numbered receipt for the collateral. The receipt must include in detail a full account of the collateral received and a copy thereof provided to the principal and any indemnitor.

(i) When collateral security in excess of $5,000 cash or its equivalent is received by a bail bond agent, the entire amount shall be immediately forwarded to the insurer. Such collateral security may be placed in an interest-bearing account to accrue to the benefit of the person giving the collateral security, and the bail bond agent or insurer may not make any pecuniary gain on the collateral security deposited. Any such account shall be in a depository office of a financial institution located in this State. The insurer shall be liable for all collateral received. If the bail bond agent fails to return the collateral to the indemnitor upon final termination of liability on the bond, the surety shall be liable for the collateral and shall return the actual collateral to the indemnitor or, in the event that the surety cannot locate the collateral, the surety shall pay the indemnitor pursuant to the provisions of this Section.

(a) After a warrant has been issued for a defendant’s failure to appear, a bail agent having knowledge of the whereabouts of the defendant shall immediately notify the law enforcement agency closest to the defendant’s location of:

(1) the identity of the defendant;

(2) the identity of the bail agent;

(3) the location of the defendant where law enforcement officers might be able to obtain custody of the defendant; and

(4) whether the bail agent has retained a bail enforcement agent and/or notified a bail enforcement agent of the defendant’s location.

(b) A bail agent may employ the services of a bail enforcement agent or similar person under such terms as may be permissible by law, regulation and/or court rule, the costs of which may be assessed to the indemnitor.

(1) Suggest or advise the employment of or name for employment any particular attorney to represent the defendant.

(2) Solicit business in or about any place where prisoners are confined or in or about any court.

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

(4) Pay a fee or rebate or give anything of value to an attorney in bail bond matters, except for legal services actually rendered.

(5) Pay a fee or rebate or give or promise anything of value to the defendant or anyone in his behalf.

(6) Participate in the capacity of an attorney at a trial or hearing of a person on whose bond he is surety, except for the purposes of surrendering the defendant, making motions to set aside orders of bail forfeitures and motions to exonerate bails and protecting his financial interest in such a bond.

(b) The following persons may not be bail agents, and shall not, directly or indirectly, receive any benefits from the execution of any bail bond:

(1) Jailers;

(2) Police officers;

(3) Any person acting in a judicial capacity, including but not limited to justices, judges, alderman, commissioners, clerks, etc.;

(4) Sheriffs, deputy sheriffs and constables;

(5) Attorneys or persons employed in an attorney’s office;

(6) Any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners; and

(7) Prisoners incarcerated in any jail, prison or any other place used for the incarceration of persons.

(c) A bail agent shall not sign or countersign in blank any bond, or give the power of attorney to, or otherwise authorize, anyone to countersign his name to bonds unless the person so authorized is a licensed bail agent directly employed by the agent giving the power of attorney.

(a) A bail agent shall report to the Department any administrative action taken against the bail agent in another jurisdiction or by another governmental agency in this State within thirty (30) days of the final disposition of the matter. This report shall include a copy of the order, consent to order or other relevant legal documents.

(b) Within thirty (30) days of the initial pretrial hearing date, a bail agent shall report to the Department any criminal prosecution of the bail agent taken in any jurisdiction. The report shall include a copy of the initial complaint filed, the order resulting from the hearing, and any other relevant legal documents.

Approved July 19, 2008