Does Florida § 648.44(1)(b), which limits how bail bond agents can advertise and distribute information inside jails, prisons, detention centers, and courts, violate the First Amendment commercial-speech rights of bail bond agents?

Subject

Florida Representative Cord Byrd asked the Attorney General to opine on whether § 648.44(1)(b), Fla. Stat. (2018), which restricts bail bond agents' distribution of print advertising and written information inside jails, prisons, detention centers, and courts unless requested, violates the First Amendment's commercial-speech protections; and whether the statute applies to "informational signboards" displaying basic contact information for licensed bail agents.

Currency note

This informal letter was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The First Amendment commercial-speech doctrine has continued to develop, and Florida § 648.44 may have been amended. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific commentary in this letter.

Plain-English summary

Representative Byrd's question had two parts. First, did Florida § 648.44(1)(b), which limits bail bond agents from distributing print advertising or written information in jails, prisons, detention centers, and courts unless the prisoner or potential indemnitor requests it, violate the First Amendment? He cited Pruett v. Harris County Bail Bond Board, 499 F.3d 403 (5th Cir. 2007), in which the Fifth Circuit found a First Amendment violation in a comparable Texas statute. Second, did the statute apply to "informational signboards" of the kind a California Department of Insurance opinion approved in 2001?

The office's general policy. AG Senior Assistant Ellen Gwynn declined to issue an opinion on the constitutionality of the existing statute, consistent with the office's longstanding policy "not to issue opinions on questions regarding the constitutionality of existing statutes or ordinances." The reason is institutional: the AG's office is often called on to defend statutes in court and so presumes their constitutionality. Constitutional review is the judicial branch's role.

General comments offered. The letter offered some non-opinion observations to help the requester:

• Section 648.44(1)(b) "appears significantly different from, and more narrowly tailored than, the Texas statute at issue in Pruett." That suggested the Pruett result might not transfer cleanly.
• In re Henneke, 2012 WL 764888 (Ohio Ct. App. 2012), was identified as potentially helpful for the requester's analysis.

On the signboard question. The letter noted some structural features of Florida's statute that distinguish it from the California regulation:

• Unlike the California regulation, which barred "solicitation" without defining it, Florida's statute defines solicitation to include "the distribution of business cards, print advertising, or other written or oral information directed to prisoners or potential indemnitors, unless a request is initiated by the prisoner or a potential indemnitor."
• The statute affirmatively allows certain advertising: "Permissible print advertising in the jail is strictly limited to a listing in a telephone directory and the posting of the bail bond agent's or agency's name, address, and telephone number in a designated location within the jail."
• The statute does not create a "short list" or "exclusive list" of bail bond agents.

Those features arguably distinguished the Florida regime from the regimes that have failed constitutional challenges elsewhere.

The bottom line. No formal AG opinion was issued. The letter signaled that the constitutional question was open, that the Florida statute's structure differed from invalidated statutes elsewhere, and that the requester should consult cases like Pruett (Fifth Circuit) and Henneke (Ohio) for the analytic framework rather than relying on a definitive AG conclusion.

Common questions

Q: What is § 648.44(1)(b)?

It is the Florida statute that restricts bail bond agents from distributing print advertising and written information to prisoners or potential indemnitors inside jails, prisons, detention centers, and courts, unless requested. Permissible print advertising is "strictly limited" to a directory listing and posted name/address/telephone in a designated location.

Q: Why did the AG decline to give a formal opinion?

The office's policy is not to opine on the constitutionality of existing statutes, because the office regularly defends those statutes in court and presumes their constitutionality. Constitutional review is the judicial branch's role.

Q: What was Pruett v. Harris County Bail Bond Board?

A 2007 Fifth Circuit decision (499 F.3d 403) finding that a Texas regulation restricting bail bond agent advertising violated the First Amendment's commercial-speech protections. The Florida statute differs from the Texas regulation in several ways, so the Pruett outcome does not necessarily apply.

Q: Are "informational signboards" allowed in Florida jails under this statute?

The letter did not directly answer. It pointed out that the Florida statute permits a "designated location" for posting an agent's basic contact information, which suggests basic informational displays may fit. Whether multi-agent signboards or larger displays fit is a question of statutory construction and First Amendment analysis the letter expressly declined to resolve.

Q: Is this a formal AG opinion?

No. It is an informal letter from a Senior Assistant Attorney General. Formal AG opinions carry more weight than informal letters and are subject to a more rigorous internal review process. Informal letters are courtesy responses to legislators and others.

Background and statutory framework

Florida § 648.44 governs bail bond agent conduct. Subsection (1)(b) addresses solicitation in correctional and judicial facilities. The First Amendment commercial-speech framework applied to advertising restrictions traces to Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), and its successors.

The Texas counterpart litigated in Pruett was a Harris County Bail Bond Board regulation, which the Fifth Circuit struck down on First Amendment grounds. Subsequent decisions in other states have addressed similar questions, including the Ohio Court of Appeals decision In re Henneke, 2012 WL 764888 (Ohio Ct. App. 2012), which the AG letter recommended as helpful.

Citations

Florida Statutes:
- § 648.44(1)(b)

Cases:
- Pruett v. Harris County Bail Bond Board, 499 F.3d 403 (5th Cir. 2007), cert. denied, 552 U.S. 1181 (2008)
- In re Henneke, 2012 WL 764888 (Ohio Ct. App. 2012)

Other AG Opinions:
- Op. Att'y Gen. Fla. 2005-51 (2005); Letter to Tegan Slaton (Aug. 30, 1999)

Other:
- Comm'r Op., Calif. Dep't of Ins. (Dec. 20, 2001)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/constitutionality-of-bail-bond-agent-solicitation-law
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8014

Original opinion text

The Honorable Cord Byrd

House of Representatives, District 11

308 House Office Building

402 South Monroe Street

Tallahassee, Florida 32399

Dear Representative Byrd:

Thank you for your inquiry of March 14, 2019, requesting an opinion as to whether section 648.44(1)(b), Florida Statutes (2018), violates a bail bond agent’s right to commercial speech under the First Amendment of the United States Constitution. The provision prohibits bail bond agents from distributing print advertising and written information, unless requested, in jails, prisons, detention centers, and courts. You suggest that the Fifth Circuit Court of Appeals found a First Amendment violation with regard to a comparable Texas statute in Pruett v. Harris County Bail Bond Board. 499 F.3d 403 (5th Cir. 2007), cert. den., 552 U.S. 1181 (2008). You also ask whether the statutory provision applies to “informational signboards,” citing an opinion by the Commissioner of the California Department of Insurance approving the display of signboards in jails and other detention facilities. Comm’s Op., Calif. Dep’t of Ins. (Dec. 20, 2001), available at /files/pdf/page/04D1455FD98B9E21852583FA007107D4/Opinion-December-20-2001.pdf. You do not define “informational signboard” other than to say they “allow access to bail agent information.” Signboards were described in the California insurance opinion as “a printed presentation providing basic contact information regarding the name, address and telephone number of licensed bail agents, and/or an advertisement or compilation of the individual advertisements of licensed bail agents.” Id. at 2.

This office is often called to defend the constitutionality of Florida Statutes and, thus, presumes the constitutionality of the statutes. Accordingly, it is the policy of the Attorney General’s office not to issue opinions on questions regarding the constitutionality of existing statutes or ordinances. See Op. Att’y Gen. Fla. 2005-51 (2005), Letter to Tegan Slaton (Aug. 30, 1999). As stated on the website of the Office of the Attorney General: “In order not to intrude upon the constitutional prerogative of the judicial branch, opinions generally are not rendered on … questions requiring a determination of the constitutionality of an existing statute or ordinance.” http://myfloridalegal.com/pages.nsf/Main/dd177569f8fb0f1a85256cc6007b70ad. I offer the following general comments in an effort to be of assistance.

Section 648.44(1)(b), Florida Statutes, appears significantly different from, and more narrowly tailored than, the Texas statute at issue in Pruett. A 2012 decision by an Ohio Court of Appeals may be helpful to your analysis. See In re Henneke. 2012 WL 764888 (Ohio Ct. App. 2012).

Unlike the California insurance regulation barring solicitation without defining it, section 648.44(1)(b), Florida Statutes, defines “solicitation” to include “the distribution of business cards, print advertising, or other written or oral information directed to prisoners or potential indemnitors, unless a request is initiated by the prisoner or a potential indemnitor.” The Florida statute also articulates the advertising that must be allowed: “Permissible print advertising in the jail is strictly limited to a listing in a telephone directory and the posting of the bail bond agent’s or agency’s name, address, and telephone number in a designated location within the jail.” The statute does not create a “short list” or “exclusive list” of bail bond agents.



I hope these general comments are useful to you.





                        Sincerely,







                        Ellen B. Gwynn

                        Senior Assistant Attorney General

EBG/tsh