BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1406


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          Date of Hearing:  April 22, 2015


                           ASSEMBLY COMMITTEE ON INSURANCE


                                   Tom Daly, Chair


          AB 1406  
          (Gordon) - As Introduced February 27, 2015


          SUBJECT:  Insurance:  bail license fees


          SUMMARY:  Imposes a $30 fee on all bail transactions to fund  
          enforcement efforts by the Department of Insurance (department).  
           Specifically, this bill:  


          1)Requires a surety insurer to pay a $30 fee on all bail  
            transactions.



          2)Creates the Bail Investigation and Prosecution Fund (fund)  
            within the Insurance Fund to receive bail transaction fee  
            revenue.



          3)Permits the department to spend the proceeds of the bail  
            transaction fee as follows:



               a.     70% shall be used to pay for investigating and  
                 prosecuting unlawful conduct by bail agents and  








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                 responding to consumer complaints.



               b.     30% shall be used to provide grants to local  
                 prosecutors for investigating and prosecuting bail cases.



          4)Establishes rules for the grant program broadly consistent  
            with other local prosecutor grant programs administered by the  
            department.



          5)Requires the Insurance Commissioner (commissioner) to reduce  
            the bail transaction fee if the fund has a balance exceeding  
            $8 million.

          6)Allows the commissioner to adopt regulations regarding the  
            disposition of excess revenues in the fund.



          7)Exempts those regulations from the Administrative Procedures  
            Act (APA).



          8)Requires the commissioner to provide an annual report  
            regarding its bail related enforcement actions.





          EXISTING LAW:  










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          1)Requires surety insurers and bail agents to be licensed by the  
            department.


          2)Requires a bail agent to pay a fee every other year to renew  
            his or her license.


          3)Requires state agencies to comply with the APA when adopting  
            regulations.


          4)Establishes industry assessments to fund consumer service and  
            enforcement functions for automobile insurance and life and  
            annuity insurance products.


          FISCAL EFFECT:  Undetermined


          COMMENTS:  





           1)Purpose  .  According to the author, the bill is motivated by  
            the growth and seriousness of bail complaints received by the  
            department.  The department's resource limitations have  
            prevented the creation of a comprehensive bail enforcement  
            program.  Funds are not only needed to create an aggressive  
            prevention, investigation, and prosecution program dedicated  
            to eliminating illegal bail schemes, but also to educate and  
            increase outreach on bail laws in California.  This bill would  
            impose a fee of $30 per bond transaction to all surety  
            companies transacting bail in California.  Thirty percent of  
            the funds would be distributed to city attorneys and county  
            district attorneys and the other seventy percent would be  
            allocated within the department to investigate, enforce, and  








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            prosecute illegal bail activity and code violations.  Similar  
            programs are in place for automobile insurance and  
            investigations related to life insurance and annuity products.  
             Imposing this assessment would provide dedicated resources to  
            investigate bail-related complaints and prosecute those cases  
            that rise to the level of criminal conduct.  It would also  
            better enable the Department to regulate and oversee bail  
            products and would also assist city attorneys and county  
            district attorneys in investigating and prosecuting surety  
            insurer and bail cases.  



          2)Bail  .  Once a person is arrested on a criminal charge and  
            booked into a jail, the question is whether the accused  
            remains in custody. Depending on many factors, an accused may  
            be released to await court dates on his or her "own  
            recognizance" or "bail" will be set.  If bail is set, that  
            means a specific amount of money, usually in the form of a  
            bail bond, is required to be paid to the courts in order to  
            secure the appearance in court of the accused.  Bail is  
            usually determined by a "schedule" or the accused can have a  
            bail hearing in front of a judge.  The bail schedule has  
            pre-set amounts for a particular crime.  If a bail hearing is  
            warranted, a judge determines the amount of the bail bond. If  
            an accused does not wish to pay the full amount ordered by the  
            court for release, or cannot afford the full amount, the  
            accused may seek the services of a bail agent.  Under existing  
            law, a bail agent must be solicited for bail directly by the  
            arrestee, the arrestee's attorney of record, or an adult  
            friend or family member. The bail agent may post bail for the  
            accused as a guarantee for the person's appearance at mandated  
            court hearings and for release from custody.  

            In California, a bail agent is a person licensed and regulated  
            by the department and will post the bond for the accused.  A  
            bail agent works with one or more bail surety companies, which  
            essentially operate as an insurer backing the bail bond. In  
            this instance, the bail agent takes responsibility for the  








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            accused making all court appearances and if the accused fails  
            to appear, the bail agent will be the party responsible to pay  
            the court the full amount of the bail bond. 
            Bail bonds may be negotiated in several ways. Most commonly, a  
            bail agent charges eight or ten percent of the bail bond,  
            commonly referred to as premium.  This is the bail agent's  
            commission. The accused does not get any of this money back  
            unless the bail agent chooses to rebate monies back to the  
            accused.  For example, on a $25,000 bail, the ten percent  
            premium paid to the bail agent is $2,500.  In turn, the bail  
            agent must pay the surety a percentage of the $2,500 based on  
            the bail agents contract with the surety insurer involved.   
            When all appearances are made and the case resolved, the money  
            provided to the court for bail will go back to the party that  
            paid - either the accused or the bail agent. If the accused  
            fails to appear for any court appearance at any time, that  
            money is forfeited to the court and a warrant is issued for  
            the arrest of the person.  

           3)Industry Assessments  .  The department operates similar  
            programs funded by industry assessments for automobile  
            insurance and life and annuity products.  As with this bill,  
            an industry assessment supports departmental operations costs  
            incurred regulating its licensees and providing grants to  
            local law enforcement agencies to cover the cost of  
            investigations and prosecutions related to licensee conduct.   
            The department is pursuing an industry assessment for bail  
            agents because of the limited size of the bail agent  
            population.  With about 3,000 bail licensees it is impractical  
            to fund the regulatory program exclusively with licensing  
            fees.  The department reports an increase in the number and  
            severity of consumer complaints regarding bail licensees and  
            believes that more resources are needed to respond to the  
            problem.  While no formal fiscal estimate has been completed,  
            the bill would likely produce approximately $5.2 million per  
            year in added revenue for the department, of which  
            approximately $3.6 million per year would go to support its  
            bail licensee enforcement program (the remainder being  
            provided as grants to local prosecutors).  That is nearly ten  








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            times the total annual revenue the department collects from  
            its bail licensees currently through licensing fees and a  
            six-fold increase in the department's enforcement resources  
            for its bail program.  Such an increase would amount to  
            approximately $1,200 per year for every licensed bail agent in  
            California. 

           4)Regulations  .  The rulemaking portion of the APA was  
            established to provide a common set of rulemaking procedures  
            and standards for state agencies in California. These  
            standards are designed to provide the public with a meaningful  
            opportunity to participate in the adoption of state  
            regulations and to ensure that regulations are clear,  
            necessary and legally valid.  The standards include  
            requirements that agencies proposing regulations provide  
            reasonable notice of their proposals and consider the comments  
            submitted by the public.   

           5)Suggested Amendments.  The author should consider the  
            following amendments to the bill:



               a.     Reduce the assessment to $15.  A $30 fee would  
                 result in a massive increase in funding for bail  
                 enforcement activity that is dramatically out of scale  
                 for the size of the bail agent population.  A $15  
                 assessment would provide considerable additional  
                 resources to both the department and local prosecutors,  
                 but be more appropriately scaled to the number of bail  
                 agents.

               b.     Delete the exemption from the APA on page 6, lines  
                 27-31.  The regulations contemplated by this section are  
                 routine and no justification for the exemption has been  
                 provided.

          REGISTERED SUPPORT / OPPOSITION:









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          Support


          Department of Insurance (sponsor)


          Alameda County District Attorney


          California District Attorneys Association


          California State Sheriffs Association


          City Attorney of Los Angeles 


          Northern California Fraud Investigator Association Anti-Fraud  
          Alliance


          Peace Officers Research Association of California


          Santa Clara County District Attorney


          Numerous individuals (including individual bail agents)




          Opposition










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          American Bail Coalition


          California Bail Agents Association (CBAA)


          Golden State Bail Agents Association (GSBAA)


          Professional bail Agents of the United States (PBUS)


          Numerous individuals (including individual bail agents)




          Analysis Prepared by:Paul Riches / INS. / (916) 319-2086