Can a Florida clerk or sheriff use a remote credit-card vendor to let people post a cash bond?

Plain-English summary

The Pinellas County Clerk of the Circuit Court asked whether the clerk and the sheriff could contract with a vendor that offers remote payment services, so detainees or others could reach an existing credit or debit account to pull cash and post a bond. The clerk had designated the sheriff to accept bond deposits under section 903.105(2). The clerk argued this was different from an earlier opinion that said a sheriff could not accept credit cards for appearance bonds, because the vendor only gives the person access to their own account rather than having the sheriff swipe a card. Assistant Attorney General Lagran Saunders did not resolve the question.

The reason was a pending court case. A prior opinion (AGO 89-65) had read section 215.322(4) to bar a sheriff from accepting credit cards for monetary appearance bonds, reasoning that bail is not a financial obligation owed to a government unit. The office noted the general principle that an officer cannot do indirectly what it is barred from doing directly, so if the vendor were acting as the sheriff's agent in accepting card payments, the earlier conclusion might still apply. More to the point, a case before the First District Court of Appeal was set to decide whether a vendor like this acts as a bail bond agent that must be licensed under Chapter 648. Because that litigation was pending, the office deferred to the judiciary and declined to comment on whether the clerk and sheriff could use the system.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 903.105(2) let the clerk, who is ultimately responsible for managing bail bond funds, designate the sheriff to accept bond deposits. The payment-card question runs through section 215.322. Subsection (1) encourages agencies, the judicial branch, and local governments to accept cards for goods, services, and information; subsection (4) lets the Chief Financial Officer set up card-processing contracts consistent with Chapter 287; and subsection (5) authorizes a unit of local government, including a clerk or sheriff, to accept cards for financial obligations owed to it and to surcharge for the service fee.

The earlier opinion had concluded that a monetary appearance bond is not a financial obligation owed to a government unit, so cards could not be accepted for it. The office cited Green v. Galvin for the proposition that a public official cannot accomplish indirectly what he is forbidden to do directly, leaving open whether the vendor would be treated as the sheriff's agent. Rather than decide, the office pointed to Accredited Surety and Casualty Company v. State of Florida, then pending in the First District, which would address whether such a vendor is a bail bond agent subject to Chapter 648 licensure, and deferred to the court.

Common questions

Q: Can a Florida sheriff or clerk let people post bail with a credit or debit card?
A: This opinion did not decide. An earlier opinion read section 215.322 to bar accepting credit cards for appearance bonds, and the office would not extend or distinguish that while related litigation was pending.

Q: Why didn't the Attorney General just answer?
A: A case before the First District Court of Appeal was set to decide whether a remote-payment vendor like the one described acts as a bail bond agent under Chapter 648. The office deferred to the courts.

Q: What was the concern with using a third-party vendor?
A: If the vendor were acting as the sheriff's agent to accept card payments, the prior prohibition might still apply, since an officer cannot do indirectly what it cannot do directly.

Q: Does the clerk or the sheriff handle bond money?
A: The clerk is ultimately responsible for managing bail bond funds, but under section 903.105(2) the clerk had designated the sheriff to accept bond deposits.

Citations and references

Statutes:

• s. 903.105(2), Fla. Stat. (designation of sheriff to accept bond deposits)
• s. 215.322(1), (4), (5), Fla. Stat. (card payments to government units)
• Ch. 287, Fla. Stat. (procurement); Ch. 648, Fla. Stat. (bail bond agent licensure)

Cases:

• Green v. Galvin, 114 So. 2d 187 (Fla. 1st DCA 1959), an official cannot do indirectly what it is barred from doing directly
• Accredited Surety and Casualty Company v. State of Florida (Fla. 1st DCA, Case No. 08-3054), pending case on whether such a vendor is a licensed bail bond agent

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/clerksheriff-remote-payments-in-posting-cash-bonds
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8230

Original opinion text

The Honorable Ken Burke

Clerk of the Circuit Court

Pinellas County, Florida

315 Court Street

Clearwater, Florida 33756-5165

Dear Mr. Burke:

You have asked for this office to comment on whether the clerk of the circuit court and the sheriff's office may enter into a contract with a vendor to provide remote payment services to persons who wish to access their credit or debit accounts in order to post a cash bond. While you state that the clerk of courts is ultimately responsible for the management of bail bond funds, pursuant to section 903.105(2), Florida Statutes, you have designated the Pinellas County Sheriff to accept bond deposits on your behalf.

Recently, you have learned of a system whereby detainees or others may access cash through the use of a credit card or debit card in order to post bond. Use of such a system insures that the funds approved by the detainee's bank or credit card company are sufficient to cover the amount of the bond and the funds are securely transmitted to the clerk with no charges made to the booking agency. You would facilitate this arrangement through a contract with a vendor which provides the remote access service, but does not assume any role as a surety.

You note that in Attorney General Opinion 89-65, this office stated that section 215.322(4), Florida Statutes,[1] does not allow a sheriff to accept credit cards for monetary appearance bonds. This conclusion was based upon a finding that a monetary appearance bond or bail is not a financial obligation owed to a unit of government for which credit cards or debit cards may be accepted.[2] You distinguish the factual situation in Attorney General Opinion 89-65, in that the remote payment services vendor provides a method for the detainee to access an existing credit or debit account to withdraw cash and does not involve acceptance of a credit or debit card by the sheriff.

You assert that the situation you have described is distinguishable from the one presented in Attorney General Opinion 89-65. However, your inquiry necessarily involves a determination of both whether the clerk or sheriff has the authority to enter into agreements with a vendor of remote payment services and the legality of an arrangement whereby the clerk or sheriff accepts funds from a remote payment service. If the vendor is acting as the agent of the sheriff for purposes of accepting a credit card or debit card to post a bond under the terms of the contract, then the conclusions in Attorney General Opinion 89-65 may be applicable. It is well settled that an agency or officer may not do indirectly that which it is prohibited from doing directly.[3]

This office has been advised that a case currently before the First District Court of Appeal addresses the issue of whether a vendor such as you have described is acting as a bail bond agent subject to licensure under Chapter 648, Florida Statutes.[4] Resolution of this issue by the court hopefully will provide direction to you and the sheriff in this matter. In light of the pending litigation, this office will defer to the judiciary’s jurisdiction and not comment on the use of such a system by the clerk and sheriff.[5]

I trust that these comments will be of assistance to you.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] Section 215.322(4), Florida Statutes, provides:

"The Chief Financial Officer may establish contracts with one or more financial institutions, credit card companies, or other entities which may lawfully provide such services, in a manner consistent with chapter 287, for processing credit card, charge card, or debit card collections for deposit into the State Treasury or another qualified public depository. Any state agency, or the judicial branch, which accepts payment by credit card, charge card, or debit card shall use at least one of the contractors established by the Chief Financial Officer unless the state agency or judicial branch obtains authorization from the Chief Financial Officer to use another contractor which is more advantageous to such state agency or the judicial branch. Such contracts may authorize a unit of local government to use the services upon the same terms and conditions for deposit of credit card, charge card, or debit card transactions into its qualified public depositories."

[2] Section 215.322(1), Florida Statutes, states the statute's purpose to encourage state agencies, the judicial branch and units of local government to accept credit cards, charge cards, and debit cards for the payment of goods, services, and information. Subsection (5) of the statute, provides:

"A unit of local government, which term means a municipality, special district, or board of county commissioners or other governing body of a county, however styled, including that of a consolidated or metropolitan government, and means any clerk of the circuit court, sheriff, property appraiser, tax collector, or supervisor of elections, is authorized to accept payment by use of credit cards, charge cards, and bank debit cards for financial obligations that are owing to such unit of local government and to surcharge the person who uses a credit card, charge card, or bank debit card in payment of taxes, license fees, tuition, fines, civil penalties, court-ordered payments, or court costs, or other statutorily prescribed revenues an amount sufficient to pay the service fee charges by the financial institution, vending service company, or credit card company for such services. A unit of local government shall verify both the validity of any credit card, charge card, or bank debit card used pursuant to this subsection and the existence of appropriate credit with respect the person using the card. The unit of local government does not incur any liability as a result of such verification or any subsequent action taken."

[3] Cf. Green v. Galvin, 114 So. 2d 187 (Fla. 1st DCA 1959), cert. denied, 116 So. 2d 775 (Fla. 1959), appeal dismissed, 117 So. 2d 844 (Fla. 1960), for the proposition that a public official cannot do indirectly that which he is prohibited from doing directly.

[4] Accredited Surety and Casualty Company vs. State of Florida, Dept. of Financial, etc., et al, (Fla. 1st DCA, Case No. 08-3054), Lower Tribunal Case No. 94421-08-DS, Declaratory Statement by the Department of Financial Services, In the Matter of: Larry Campbell, Sheriff of Leon Co., Fla., May 22, 2008.

[5] See Paragraph IV, Frequently Asked Questions About Attorney General Opinions at www.myfloridalegal.com.