Bail Bonds Overview
A bail bond is a guarantee by a third-party that a defendant in a court action will appear to all of their criminal court proceedings. The bond is given in return for the release of the defendant from court custody.
A Bail Bond is a type of Surety Bond. A surety bond is a three party guarantee put into place to protect the party requesting the bond and guarantees the performance, ability, honesty and integrity of individuals performing various responsibilities and obligations. The three parties involved are the obligee, principal and surety. However, there can be another party to a suretyship called an indemnitor.
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Bail Bond Agent: A bail bond agent (also referred to as a limited surety agent or professional bail bond agent) is an individual appointed by an insurer to execute bail bonds in connection with court proceedings and who therefore receives or is promised money or other things of value (collateral) in return for issuing a bail bond.
Collateral: Collateral is better described as property accepted as security for a loan or against the performance of an obligation. In a bail bond situation, the performance of the defendant to appear at all court proceedings is the performance being secured.
Forfeiture: A bail bond forfeiture occurs when a criminal defendant fails to appear at their court hearing, or fails to comply with the conditions of the bond.
Nebbia Proffer Filing: A Nebbia hearing requires the defendant and co-signers of the bond to produce and disclose the source of bail premium and collateral prior to the defendant's release on bail.
Indemnitor: An indemnitor may come into play when the Principal has the capabilities to perform the obligation, but is lacking the financial resources to carry it through to completion. The indemnitor may put up cash, other liquid assets, certificates of deposit (CD’S), etc. to entice the surety to issue the bond to the principal.
Managing General Agents: Managing General Agents are licensed and appointed bail bond agents in this state who are chosen by certain insurers to be responsible for the supervision of their appointed bail bond agents.
Obligee: The party requiring the bond which receives the guarantee the principal will perform.
Principal: The party required to get the bond and to perform and fulfill a contract or to meet an obligation. A Bail Bond Principal is the defendant in a court case who has authorized a bail bond agent to act on his or her behalf.
Surety: The one who guarantees the performance of the principal to the obligee (most commonly, the bonding company).
License Required: Section 648.30, Florida Statues, states a person may not act in the capacity of a bail bond agent, or temporary bail bond agent, or perform any of the functions, duties, or powers prescribed for bail bond agents or temporary bail bond agents unless that person is qualified, licensed, and appointed.
Florida Administrative Code 69B-221.001, allows a bail bond agent or duly licensed person from another state to apprehend, detain, or arrest a principal on a bond in Florida.
A person may not represent himself or herself to be a bail enforcement agent, bounty hunter, or other similar title in Florida.
Weapons: The Department of Financial Services (DFS) does not regulate weapons for anyone including bail bond agents; therefore, bail bond agents are not prohibited from carrying weapons by the Department.
Attorney Referrals: Bail bond agents are prohibited from suggesting any particular attorney to represent his or her principal or participating in the capacity of an attorney at trial or hearing of one on whose bond he/she is surety.
Every bail bond agent must be actively engaged in the bail bond business; in a building suitably designated as a bail bond agency, which must be maintained open and accessible to the public to render service during reasonable business hours.
Accessible to the public means the entrance shall be suitably designated by a sign or other display, readable from a reasonable distance, which provides at a minimum the agency name.
Additionally, if a bail bond agency is located in a building which maintains a uniform office directory on its premises, the directory shall provide at a minimum the current name of that bail bond agency. Reasonable business hours means at least eight hours daily between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday, except for legal holidays. Bail Bond Agencies are not required to be licensed.
If the agency/agent accepts payment by credit card and passes the fee to the client, the prevailing schedule of credit card fees must be conspicuously posted in the lobby of the bail bond agency, and a copy must be provided to the person tendering the credit card.
The contract between a principal and a surety for a bail bond sets forth certain terms and conditions, such as:
The right to apprehend, arrest and surrender the principal to the proper officials at any time provided by law;
The circumstances under which a refund of premium is due;
What events constitute a breach of the principal’s obligations (if the principal departs the jurisdiction of the court without the written consent, moves from one address to another within the State of Florida without notifying the surety or its agent in writing prior to, if the principal commits any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of the bond; if the principal is arrested and incarcerated for any offense other than a minor traffic violation; or if the principal makes any material false statement in the application).
It should also include the bond number, date, amount of the premium and the name of the surety company.
Restrictions: Collateral security may not be used by the bail bond agent for personal benefit or gain and must be returned in the same condition as received. A bail bond agent may accept collateral security in excess of $50,000 cash per bond, provided any amount over $50,000 cash is payable to the insurer in the form of a cashier’s check, United States postal money order, certificates of deposit, or wire transfer and is remitted to and held by the insurer.
When collateral security in excess of $5,000 cash or its equivalent is received by a bail bond agent, the entire amount must 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, insurer, or managing general agent may not make any monetary gain on the collateral security deposited. Any such account shall be in a depository office of a financial institution located in Florida. A quitclaim deed for property may not be taken as collateral.
Collateral Receipts: Pursuant to Florida Administrative Code 69B-221.120, when a bail bond agent accepts collateral he/she must give a pre-numbered receipt which includes the date, name of the principal, detailed description of collateral received, whether the collateral will be maintained in the custody of the bail bond agent, managing general agent or surety company, number of Power of Attorney form attached to the bond, and the name of the person placing the collateral in the bail bond agent’s trust. All receipts must contain the name, address and telephone number of both the surety company and agent. The receipt shall state that for any complaints or inquiries, you may contact the Department of Financial Services, Bail Bond Section, 200 East Gaines Street, Tallahassee, FL 32399-0320, (850) 413-5660.
Return of Collateral: The court normally discharges a bond within 10 business days after the condition of the bond has been satisfied. Once the bond is discharged and the agent is notified, the agent should return the collateral to the indemnitor within 21 days.
If the agent receives a written demand for the return of collateral and has not received notice of the discharge from the court, the agent must send a written request for the discharge to the court and maintain a copy in his/her file. Also, a copy of the written request for discharge should be given to the indemnitor or the person that requested the collateral return. If the court does not provide the discharge within 7 days, the bond is automatically canceled and the collateral should be returned within 21 days.
If the court discharged the bond, notified the agent, and the indemnitor has not been successful in getting the agent to return the collateral, a demand letter should be sent to the agent. The written demand letter should be sent to the agent certified, return receipt requested, to document when the request was actually received by the agent.
The return of collateral is the responsibility of the bail bond agent, MGA, or insurer. If the bail bond agent or managing general agent fails to return the collateral to the indemnitor upon final termination of liability on the bond, the surety is liable for the collateral and must return the actual collateral to the indemnitor or, in the event that the surety cannot locate the collateral, the surety must pay the indemnitor.
Forfeiture: When a forfeiture occurs, the agent or insurer shall give 10 days’ written notice of intent to convert the collateral deposit into cash to satisfy the forfeiture to the indemnitor and principal. Notice shall be sent by certified mail to the last known address of the indemnitor and principal.
The bail bond agent or insurer must convert the collateral to cash within a reasonable period of time and return that which is in excess of the face value of the bond minus the actual and reasonable expenses of converting the collateral to cash. In no event shall these expenses exceed 20 percent of the face value of the bond. However, upon motion and proof that the actual, reasonable expenses exceed 20 percent, the court may allow recovery of the full amount of such actual, reasonable expenses. If there is a remission of a forfeiture, which had required the surety to pay the bond to the court, the surety must pay to the indemnitor the value of any collateral received for the bond, minus any actual expenses and costs permitted.
A bail bond agent or insurer cannot take your home if there is a forfeiture of the home as collateral; however, they can place a lien against the title of your home.
Surrender: A bail bond agent can issue their own warrant for a person out on bond. The bail bond agent may decide to put the person back in jail for any reason. If the bail bond agent is unable to locate the person, the bail bond agent may decide to place ads for information in the newspaper, on the Internet, on telephone poles, etc.
Any bail bond agent that surrenders or recommits a defendant must provide the defendant with a statement of surrender. The statement must be signed by the agent and must state the reason for surrender. The statement must be attached to the surrender form with a copy provided to the defendant and a copy maintained by the agent in the defendants file.
The premium for a State bond is 10% of the amount of bail set by the Court. The premium for a Federal Bond is 15% of the amount of bail set by the Court.
The premium is earned (nonrefundable) once the bondsman takes the defendant out of jail. The only exception for a premium refund is in such a case where the bondsman returns the defendant to jail without proper cause.
The burden of proof is on the defendant to show the collateral and money paying the bond premium is from a legitimate source. A Nebbia hold requires the defendant and co-signers of the bond to produce and disclose the source of the premium and collateral prior to the defendant's release. If the nebbia hearing determines the funds came from the same activity that was responsible for the defendant’s arrest, the courts usually keep the funds and deny bail.
Premium Receipt: Every bail bond agent who accepts money or any other consideration for a bail bond must provide the person(s) paying the money or giving the consideration a pre-numbered receipt as evidence of payment. The receipt must show: the date, name of principal, amount of money or consideration received and the purpose for which received, the number of Power of Attorney form attached to the bond, the penal sum of the bond, the name of the person making payment or giving consideration, and the name, address and phone number of the surety company and agent.
Allowable Fees: A bail bond agent shall not charge any fee for services rendered to the principal or the indemnitor in connection with a bail bond except those allowed.
Allowable fees include:
- Attorney’s fees and court costs associated with filing of motions
- Documented transportation and lodging expenses outside the jurisdiction of the court
- Law enforcement costs for housing, re-arrest, transportation, and extradition, when such expenses are accounted for.
- A maximum fee of $100 for a surrender allowed by law when there has been no forfeiture.
- A credit card fee when a credit card is used for payment of collateral, if the fee is clearly shown on the collateral receipt and is acknowledged by the person tendering the credit card. The prevailing schedule of credit card fees must be conspicuously posted in the lobby of the bail bond agency, and a copy must be provided to the person tendering the credit card.
- A maximum $100 fee (for any one defendant) when a bail bond agent assumes liability on a bond from another bail bond agent in another county.
Per Section 903.31, Florida Statutes, bail bonds expire 36 months after they are posted to release a defendant from custody. If 36 months has passed and the court has not ruled on the case, a new bail bond would be necessary.
If the defendant is not released from the custody of the jail and premium has been paid on the bond, the bail bond agent must return the full premium to the indemnitor, as the bail bond agent and surety company had no liability.
Verify the license of the bail bond agent.
Research complaints involving the insurance company through the Division of Consumer Services at www.MyFloridaCFO.com.
Be sure you understand your responsibilities as a party to the bond.
Keep all documents related to the bond (receipts etc.) together in one location. This documentation may be needed at a future date.