The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 266
INTRODUCER: Senator Diaz
SUBJECT: Service as a Law Enforcement Officer
DATE: January 10, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Erickson Jones CJ Pre-meeting
2. ACJ
3. AP
I. Summary:
SB 266 amends the definition of “law enforcement officer” in s. 943.10(1), F.S., to specify that a
person’s service as a law enforcement officer includes the time that begins when an officer enters
an agency-issued vehicle and travels “portal-to-portal” to an assignment and also includes the
time spent traveling to, from, and during any work performed by an officer for which the law
enforcement agency or another government entity collects a fee for providing law enforcement
services.
A vehicle take-home program is a program in which an agency employing a law enforcement
officer (employing agency) assigns a vehicle to a law enforcement officer that the officer may
take home at the end of each shift. This program allows the officer to operate the agency-issued
vehicle outside the scope of employment (subject to limitations or restrictions). Although not
explicitly stated, the intent of the bill appears to be to require an employing agency that has a
vehicle take-home program to provide motor vehicle insurance coverage for the time the law
enforcement officer spends going to and from work or for any agency assignment.
The bill may have a fiscal impact on counties and municipalities. See Section V. Fiscal Impact
Statement.
The bill takes effect July 1, 2022.
II. Present Situation:
Definition of “Law Enforcement Officer”
Section 943.10(1), F.S., defines a “law enforcement officer” as any person who is elected,
appointed, or employed full time by any municipality or the state or any political subdivision
thereof; who is vested with authority to bear arms and make arrests; and whose primary
REVISED: BILL: SB 266 Page 2
responsibility is the prevention and detection of crime or the enforcement of the penal, criminal,
traffic, or highway laws of the state. This definition includes all certified supervisory and
command personnel whose duties include, in whole or in part, the supervision, training,
guidance, and management responsibilities of full-time law enforcement officers, part-time law
enforcement officers, or auxiliary law enforcement officers but does not include support
personnel employed by the employing agency.
1
Sovereign Immunity and s. 768.28, F.S.
Sovereign immunity is a principle under which a government cannot be sued without its
consent.
2
Article X, s. 13, of the Florida Constitution allows the Legislature to waive this
immunity. Section 768.28(1), F.S., authorizes suits in tort against the State and its agencies and
political subdivisions for damages resulting from the negligence of government employees
acting in the scope of their employment. This liability exists only where a private person would
be liable for the same conduct. The waiver applies only to “injury or loss of property, personal
injury, or death caused by the negligent or wrongful act or omission of any employee of the
agency or subdivision while acting within the scope of the employee’s office or employment....”
3
Section 768.28(5)(a), F.S., limits tort recovery from a governmental entity to $200,000 per
person and $300,000 per accident. This limitation does not prevent a judgement in excess of such
amounts from being entered, but a claimant is unable to collect above the statutory limit unless a
claim bill is passed by the Legislature.
4
Motor Vehicle Insurance
Chapter 627, part XI, F.S., Motor Vehicle and Casualty Insurance Contracts, and ch. 324, F.S.,
Financial Responsibility, establish motor vehicle insurance coverage requirements. Florida’s
financial responsibility law exists to ensure that the privilege of owning or operating a motor
vehicle on the public streets and highways is exercised with due consideration for others and
their property, to promote safety, and to provide financial security requirements for the owners or
operators of motor vehicles who are responsible to recompense others for injury to person or
property caused by a motor vehicle.
5
Florida law requires owners of motor vehicles with four or more wheels to purchase both
$10,000 of property damage (PD) liability insurance and $10,000 of personal injury protection
(PIP) insurance.
6
PD liability insurance covers damage to, or destruction of, property of others as
a result of a crash.
7
1
Section 943.10(1), F.S.
2
Sovereign Immunity, The Legal Information Institute, Cornell Law School, available at
https://www.law.cornell.edu/wex/sovereign_immunity (last visited on Jan. 4, 2022).
3
Section 768.28(1), F.S.
4
Section 768.28(5)(a), F.S.
5
Section 324.011, F.S.
6
See ss. 627.733 and 324.022, F.S. A driver in compliance with the requirement to carry PIP insurance coverage is not
required to maintain bodily injury (BI) liability coverage. However, Florida law requires proof of ability to pay monetary
damages in the amount of $10,000 because of bodily injury to, or death of, one person in any one crash, and $20,000 for
bodily injury to, or death of, two or more persons in any one crash, and $10,000 in the event of damage to property of others,
or $30,000 combined BI/PD liability insurance after a motor vehicle accident. See ss. 324.011 and 324.051, F.S.
7
Section 324.022, F.S. BILL: SB 266 Page 3
PIP insurance, on the other hand, compensates insured persons injured in accidents regardless of
fault.
8
Policyholders are indemnified by their own insurer. The intent of no-fault insurance is to
provide for medical, surgical, funeral, and disability insurance benefits without regard to fault.
9
This coverage also provides policyholders with immunity from liability for economic damages
up to the policy limits and limits tort suits for non-economic damages (pain and suffering) below
a specified injury threshold.
10
A driver’s license and vehicle registration are subject to suspension for failure to comply with
the security requirement to maintain PD liability insurance and PIP insurance coverage.
11
A
driver’s license and registration may be reinstated by obtaining a liability policy and by paying a
fee to the Department of Highway Safety and Motor Vehicles.
12
Obligations of Insurer to Insured
A liability insurer generally owes two major contractual duties to its insured in exchange for
premium payments: the duty to indemnify and the duty to defend.
The term indemnify is generally interpreted as imposing an obligation on one party (the
indemnitor) to pay or compensate the other party (the indemnitee) for certain legal
liabilities or losses, but that obligation does not typically arise until the end of a case
when the indemnitee has had a judgment entered against it for damages or has made
payments or suffered actual loss. The term defend, on the other hand, usually imposes an
independent duty to either actively defend or fund the defense of any claim brought
against the indemnitee that falls within the scope of the indemnification provision. The
duty to defend is a promise to render, or fund, the service of providing a defense on the
indemnitee’s behalf--a duty that usually arises as soon as a claim is made against the
indemnitee and may continue until the claim has been resolved.
13
Vehicle Take-Home Programs for Law Enforcement Officers
Vehicle take-home programs, also referred to as assigned vehicle programs, are currently in
operation throughout Florida. In the 2020 Criminal Justice Agency Profile Report by the Florida
Department of Law Enforcement, it was reported that approximately ninety percent of the state’s
law enforcement agencies operate a vehicle take-home program.
14
Some of the cited reasons for
and benefits of such a program include:
8
Section 627.733, F.S.
9
Section 627.731, F.S.
10
Section 627.737, F.S.
11
Section 324.0221(2), F.S.
12
Section 324.0221(3), F.S.
13
Sean McChristian, Indemnity vs. Duty to Defend: Know the Differences and Potential Critical Variations in State Law
(Aug. 16. 2019), American Bar Assoc., available at
https://www.americanbar.org/groups/construction_industry/publications/under_construction/2019/summer/indemnity-vs-
duty/ (last visited on Jan. 4, 2022).
14
Florida Department of Law Enforcement, Criminal Justice Agency Profile Report, Police Departments and Sheriffs’
Offices, Supplemental Programs, available at http://www.fdle.state.fl.us/CJSTC/Publications/CJAP/CJAP.aspx (last visited
on Jan. 4, 2022); See also Sheriffs’ Offices, 2007 – Statistical Table (Dec. 2012), U.S. Department of Justice, Office of Justice BILL: SB 266 Page 4
An increased police presence in the community;
Improved patrol shift transitions;
Improved operational mobility and flexibility;
Improved emergency response and control;
Increased vehicle longevity;
Lower operating cost; and
Less down time for vehicle maintenance.
15
Garcia v. City of Hollywood – Officer was not acting within the course and scope of
employment when he struck a pedestrian with his “take home” patrol vehicle
In Garcia v. City of Hollywood,
16
the Florida Fourth District Court of Appeals (Fourth DCA)
affirmed a trial court granting summary judgment for the City of Hollywood, finding that the city
was not liable for a pedestrian’s injuries incurred when he was struck by a “take home” vehicle
owned by the city and operated by a sergeant who traveled to the station an hour before his shift
to study for an exam. The marked patrol vehicle was provided to the sergeant pursuant to a
vehicle take-home policy that was incorporated in a collective bargaining agreement between the
Broward County Police Benevolent Association and the City of Hollywood.
17
The Fourth DCA concluded that the sergeant was not within the course and scope of his
employment when the accident occurred. The Fourth DCA noted that the uncontradicted
testimony in the trial court established that the officer “had yet to begin work when the accident
occurred and was merely driving to the police station an hour before his shift began to study for
an exam prior to beginning work.”
18
Further, the appellate court commented:
The City notes that although … [the sergeant] was driving a City-owned police vehicle,
the Florida Supreme Court has held that our waiver of sovereign immunity statute,
section 768.28(1), Florida Statutes (2004), does not waive sovereign immunity under the
dangerous instrumentality doctrine.
19
Rabideau v. State, 409 So.2d 1045, 1046 (Fla.1982)
(“twenty-four-hour assignment of a state-owned vehicle to a state employee does not
enlarge state liability under section 768.28 to include acts committed outside the
employee’s scope of employment”).
20
Programs, Bureau of Justice Statistics, available at https://bjs.ojp.gov/content/pub/pdf/so07st.pdf (last visited on Jan. 4, 2022)
(reporting that ninety-three percent of sheriffs’ departments around the country allow personnel to take department vehicles
home).
15
See Assigned Vehicle Program, Pima County Sheriff’s Department, available at
https://pimasheriff.org/application/files/5415/6346/6464/Assigned_Vehicles_Program.pdf (last visited on Jan. 4, 2022). See
also 05-36 Fla. Op. Att’y Gen. (June 16, 2005).
16
966 So.2d 5 (Fla. 4th DCA 2007).
17
Id. at 5-6.
18
Id. at 6.
19
“Adopted in 1920, Florida’s dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor
vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.”
Aurbach v. Gallina, 753 So.2d 60, 63 (Fla. 2000) (citation omitted). Under this doctrine, “an owner who gives authority to
another to operate the owner’s vehicle, by either express or implied consent, has a nondelegable obligation to ensure that the
vehicle is operated safely.” Id. (citation omitted).
20
Garcia, 966 So.2d at 6. BILL: SB 266 Page 5
The Fourth DCA found support for its conclusion in the following cases: Foremost Dairies v.
Godwin,
21
a case in which the Florida Supreme Court reversed a negligence judgment against an
employee whom the Court held was not in the course of his employment as a matter of law when
he was “merely going to or from work in his own car”;
22
and Everett Ford Co. v. Laney,
23
a case
in which the Florida Supreme Court held that an employee who worked irregular hours was not
within the scope of her employment when the accident occurred (while driving home to recover
a key to the closed office which she had forgotten).
24
The Fourth DCA found additional support for its conclusion in Palm Beach County Sheriff’s
Office v. Ginn,
25
a worker’s compensation case involving a deputy who was injured in an
accident while driving a vehicle provided by his employer. When the accident occurred, the
deputy was off-duty and running a personal errand, which he was authorized by his employer to
do. Prior to his accident the deputy had been monitoring a police radio in case he was called and
was wearing a beeper. The First District Court of Appeal (First DCA) in Ginn found that the
deputy was not acting within the course of his employment when the accident occurred.
26
The
Fourth DCA quoted the following findings of the First DCA:
The fact that a law enforcement officer is on call for duty and has a police radio and other
indicia of his authority in his possession is not dispositive in determining whether an off-
duty officer is acting within the course of his employment. Rather, the issue, pursuant to
the provisions of Section 440.091, is whether the officer is carrying out his primary
responsibility, which is the “prevention or detection of crime or the enforcement of the
penal, criminal, traffic, or highway laws of the state.”
27
The Fourth DCA found this situation similar to the situation in the case it was reviewing. The
sergeant was “not in the process of carrying out a ‘primary responsibility’ of his job as a police
officer” and “not engaged in the ‘prevention or detection of crime or the enforcement of the
penal, criminal, traffic, or highway laws of the State.’”
28
The Fourth DCA concluded:
He was not furthering any interest of his employer or performing any duties of his
employment. He was simply in transit to the police station an hour before he was required
to report for work for the personal reason of studying for the Lieutenant’s exam.
29
Impact of Garcia v. City of Hollywood
As a result of the Garcia opinion, some law enforcement agencies recommend or require their
law enforcement officers to obtain a “use of non-owned vehicle” insurance policy that provides
liability coverage when the officer is operating a vehicle owned by another person or entity (i.e.,
21
158 Fla. 245, 26 So.2d 773 (Fla. 1946).
22
Garcia, 966 So.2d at 7, citing Foremost Dairies, Inc., 26 So.2d at 774.
23
189 So.2d 877.
24
Garcia, 966 So.2d at 7, citing Everett Ford. Co., 189 So.2d at 878.
25
570 So.2d 1059 (Fla. 1st DCA 1990).
26
Garcia, 966 So.2d at 7 describing Ginn, 570 So.2d at 1060.
27
Garcia, 966 So.2d at 7, quoting Ginn, 570 So.2d at 1060.
28
Garcia, 966 So.2d at 7.
29
Id. at 7-8. BILL: SB 266 Page 6
an official law enforcement vehicle).
30
For example, the Orlando Police Department requires
their officers to show proof of non-owned vehicle insurance coverage before issuance of a take-
home vehicle. The stated purpose of “this policy is to recognize that certain potential liabilities
incurred by employees are not covered by the City’s insurance program, and that requiring
personal insurance coverage is in the best interest of the City, the employee, and the public.”
31
Workers’ Compensation – “Going or Coming” Rule
Section 440.092, F.S., in part, sets forth special requirements for compensability relating to
workers’ compensation coverage. Section 440.092(2), F.S., codifies “the ‘going or coming’
rule.”
32
Specifically, subsection (2) provides that an injury suffered while going to or coming
from work is not an injury arising out of and in the course of employment whether or not the
employer provided transportation if such means of transportation was available for the exclusive
personal use by the employee, unless the employee was engaged in a special errand or mission
for the employer. For the purposes of subsection (2) and notwithstanding any other provisions of
law to the contrary, an injury to a “law enforcement officer” as defined in s. 943.10(1), F.S.,
during the officer’s work period or while going to or coming from work in an official law
enforcement vehicle, is presumed to be an injury arising out of and in the course of employment
unless the injury occurred during a distinct deviation for a nonessential personal errand. If,
however, the employer’s policy or the collective bargaining agreement that applies to the officer
permits such deviations for nonessential errands, the injury is presumed to arise out of and in the
course of employment.
33
III. Effect of Proposed Changes:
The bill, which takes effect July 1, 2022, amends the definition of “law enforcement officer” in
s. 943.10(1), F.S., to specify that a person’s service as a law enforcement officer includes the
time that begins when an officer enters an agency-issued vehicle and travels “portal-to-portal” to
an assignment and also includes the time spent traveling to, from, and during any work
performed by an officer for which the law enforcement agency or another government entity
collects a fee for providing law enforcement services.
Although not explicitly stated, the intent of the bill appears to be to require an employing agency
that has a vehicle take-home program (see description in “Present Situation” section of this
30
See e.g. Collective Bargaining Agreement between the City of Ocala, Florida and Florida State Lodge, Fraternal Order of
Police, available at https://www.ocalafl.org/home/showpublisheddocument/2130/637504395197530000 ; City of Hollywood,
Florida, Take Home Vehicle Policy HB-038:2, available at http://www.hollywoodfl.org/DocumentCenter/View/11445/038-2-
TakeHome-Vehicle?bidId; Orlando Police Department Policy and Procedure 1802.17, Use of City Vehicles, available at
https://www.orlando.gov/files/sharedassets/public/documents/opd/policies-and-procedures/city-owned-vehicles/1802.17-use-
of-city-vehicles.pdf; and Collective Bargaining Agreement between Town of Davie, Florida and Florida State Lodge
Fraternal Order of Police, Inc., available at https://www.davie-fl.gov/DocumentCenter/View/9755/FOP-
CollectiveBargaining-Agreement-2019-2022-PDF (all sites last visited on Jan. 4, 2022).
31
Orlando Police Department Policy and Procedure 1802.17, Use of City Vehicles, available at
https://www.orlando.gov/files/sharedassets/public/documents/opd/policies-and-procedures/city-owned-vehicles/1802.17-use-
of-cityvehicles.pdf (last visited on Jan. 4, 2021).
32
Dunnam v. Olsten Quality Care, 667 So.2d 948, 949 (Fla. 1st DCA 1996).
33
Section 440.092(2), F.S. BILL: SB 266 Page 7
analysis) to provide motor vehicle insurance coverage for the time the law enforcement officer
spends going to and from work or for any agency assignment.
The inclusion of the new text (lines 46-52 of the bill) in the definition of “law enforcement” in
s. 943.10, F.S, a term which is used in many different chapters of the Florida Statutes for
different purposes, may be construed to impact more than motor vehicle insurance coverage. For
example, the Florida Police Chief Association (FPCA) has expressed concerns that the bill “will
increase costs (or reduce staffing to compensate for the increased costs)….”
34
The FPCA claims
that the bill
would put the officers “on the clock” the minute they entered their car, and therefore,
their time commuting to work would be compensable. This would result in significant
and likely untenable overtime expenses, or in the alternative, reduced shifts to
compensate for the increased cost of paying officers during their commute.
35
The FPCA also expressed concerns that the bill “will increase legal exposure for auto negligence
claims.”
36
The FPCA claims that the bill
would create additional potential liability for the agencies and their insurers. As evident
by Garcia, an agency is not liable for the negligence of its officers simply driving to and
from work, because they are not acting within the course and scope of employment.
Section 768.28(9)(a), Florida Statutes specifically provides that the employer is not liable
for the conduct of its employees outside the course and scope of employment. SB 266
seems to want to make the officers ‘on-duty’ the minute they enter the car, which would
place them within the course and scope of employment, and thus trigger the agency’s
exposure to liability for an officer’s negligence while commuting. This would expand the
agency’s exposure.
37
Finally, the FPCA has expressed concerns that the bill would impact workers’ compensation:
From a worker’s comp perspective, Section 440.092(2) which provides that an injury
incurred by a law enforcement officer going to or from work in an official law
enforcement vehicle “shall be presumed to be an injury arising out of and in the course of
employment.” The presumption can be overcome in the work comp context by showing
the officer was engaged in nonessential personal errands. SB 266 would conclusively
establish the course and scope issue, therefore eliminating the exception that would
permit the agency to deny a work comp claim if an officer was engaged in a purely
personal errand in an agency vehicle. Although the subset of accidents this would apply
to is likely small, it would further expose the agency to liability.
38
34
E-mail from Jennifer Cook Pritt, Executive Director, Florida Police Chiefs Association, dated Oct. 25, 2021 (on file with
the Senate Committee on Criminal Justice).
35
Id.
36
Id.
37
Id.
38
Id. BILL: SB 266 Page 8
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Article VII, s. 18(a), of the Florida Constitution provides, in relevant part, that: “No
county or municipality shall be bound by any general law requiring such county or
municipality to spend funds...unless the legislature has determined that such law fulfills
an important state interest and unless: the law requiring such expenditure is approved by
two-thirds vote of the membership of each house of the legislature; [or] . . . the
expenditure is required to comply with a law that applies to all persons similarly situated,
including the state and local governments….”At present, the bill does not have a finding
of an important state interest. The provisions of this bill appear to apply to all persons
similarly situated (state and local law enforcement agencies).
The mandate requirements do not apply to laws having an “insignificant impact” which,
for Fiscal Year 2021-2022, appears to be an amount not exceeding $2.2 million.
39
The
fiscal impact of this bill on municipalities and counties is indeterminate. If costs imposed
by the bill are determined to exceed $2.2 million in the aggregate, the bill may be binding
on municipalities and counties if the bill contains a finding of important state interest and
meets one of the exceptions specified in Article VII, s. 18(a) of the State Constitution
(e.g., applies to all persons similarly situated or is enacted by a vote of two-thirds of the
membership of each house of the Legislature).
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
39
A 2012 Senate interim report indicated that an “insignificant fiscal impact” is the amount not greater than the average
statewide population for the applicable fiscal year times $0.10. See Insignificant Impact, Interim Report 2012-115: (Sep.
2011), Florida Senate Committee on Community Affairs,), available at:
http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-115ca.pdf (last visited on Jan. 4, 2022). The
Florida Demographic Estimating Conference’s November 3, 2020, population forecast for 2021 was 21,830,364 persons. The
conference packet is available at: http://edr.state.fl.us/Content/conferences/population/ConferenceResults.pdf (last visited on
Jan. 4, 2022). BILL: SB 266 Page 9
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill will likely have an indeterminate, positive fiscal impact on the private sector as a
result of premiums collected by insurers on this coverage.
C. Government Sector Impact:
An employing agency with a vehicle take-home program would no longer be able to
recommend or require their law enforcement officers to obtain a “use of non-owned
vehicle” insurance policy. The employing agency would have to provide motor vehicle
insurance coverage. The cost of this coverage is currently indeterminate.
If the FPCA’s analysis of the bill is correct, the bill would also increase:
Costs to compensate officers for commuting time (additional overtime or staffing
reductions to compensate for increased costs);
Law enforcement agencies’ “legal exposure for auto negligence claims”; and
Law enforcement agencies’ legal exposure in some workers’ compensation cases.
40
The Department of Management Services provided the following comments regarding
the bill:
The changes in SB 266 to the definition of law enforcement officer do not change the
ability for a member to qualify for the Special Risk Class.
The reenactment of ss. 112.1815, 440.092(2), and 440.15(11), F.S., do not appear to
change retirement benefits from what is currently provided and, as such, would not
impact the Florida Retirement System (FRS).
If the change in the definition of “law enforcement officer” and the reenactment of
these sections are designed to expand in-line-of-duty disability or death benefits
through the FRS, then there would be an impact.
41
An impact analysis from the Office of the Comptroller was requested but not received
when this analysis was completed.
VI. Technical Deficiencies:
The text of the bill uses the term “portal-to-portal.” While this term is often used to describe
travel to and from work, the term has multiple meanings. For example, the term is defined by
Meriam-Webster to mean “of or relating to the time spent by a worker in traveling between the
40
Id.
41
E-mail from Sam Kerce, Legislative Affairs, Department of Management Services, dated Dec. 3, 2021 (on file with the
Senate Committee on Criminal Justice). BILL: SB 266 Page 10
entrance to an employer’s property and the worker’s actual job site….”
42
Dictionary.com defines
the term as “noting or pertaining to the time a worker spends from entering the workplace to
stepping outside, especially in relation to pay.”
43
Lexico defines the term as “relating to or
consisting of the time spent on the premises of one’s place of work including time spent on
essential non-working activities, as changing or washing.”
44
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 943.10 of the Florida Statutes.
This bill also reenacts the following sections of the Florida Statutes: 111.065, 112.1815, 112.19,
196.081, 316.066, 440.092, 440.15, 790.052, and 960.194.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
42
See https://www.merriam-webster.com/dictionary/portal-to-
portal#:~:text=%3A%20of%20or%20relating%20to%20the,)%20portal%2Dto%2Dportal%20pay (last visited on Jan. 4,
2022).
43
See https://www.dictionary.com/browse/portal-to-portal (last visited on Jan. 4, 2022).
44
See https://www.lexico.com/en/definition/portal-to-portal (last visited on Jan. 7, 2022).