Florida Senate - 2008 SB 2616

By Senator Bennett

21-04318-08 20082616__

1

A bill to be entitled

2

An act relating to sovereign immunity for law enforcement

3

agencies; providing a short title; providing legislative

4

findings and intent; amending s. 768.28, F.S.; prescribing

5

conditions under which a law enforcement agency is immune

6

from liability for damages resulting from its conduct of a

7

criminal investigation; specifying certain discretionary

8

acts that are not subject to liability; amending ss.

9

29.0081, 163.01, 456.048, 458.320, 459.0085, 616.242,

10

624.461, 624.462, 627.733, 984.09, and 985.037, F.S.;

11

conforming statutory cross-references; providing an

12

effective date.

13

14

Be It Enacted by the Legislature of the State of Florida:

15

16

     Section 1. This act may be cited as the "Mark Lunsford Show

17

Respect and Gratitude to Law Enforcement Act."

18

     Section 2. The Legislature finds that a law enforcement

19

agency, in the course of conducting a criminal investigation,

20

must make difficult and complex decisions while under significant

21

pressure concerning the manner in which it conducts the

22

investigation. These decisions include, but are not limited to,

23

decisions regarding which individuals the agency should question,

24

which leads or theories the agency should pursue, and which

25

properties the agency should search. Therefore, it is the intent

26

of the Legislature that a law enforcement agency, when acting in

27

good faith and in the best interests of crime victims, their

28

families, and the public and using professional judgment and

29

experience, not face civil liability for damages that may result

30

from these types actions in conducting a criminal investigation.

31

     Section 3.  Present subsections (10) through (20) of section

32

768.28, Florida Statutes, are renumbered as subsections (11)

33

through (21), respectively, and a new subsection (10) is added to

34

that section, to read:

35

     768.28  Waiver of sovereign immunity in tort actions;

36

recovery limits; limitation on attorney fees; statute of

37

limitations; exclusions; indemnification; risk management

38

programs.--

39

(10)(a) A law enforcement agency acting in good faith and

40

in the course of its business is not liable for damages under

41

this section arising from the manner in which it conducts a

42

criminal investigation unless the damages result from a wholly

43

operational, rather than discretionary, act of the agency or its

44

officers, employees, or agents, and the agency or its officers,

45

employees, or agents failed to use reasonable care in performing

46

that operational act.

47

(b) For purposes of this subsection, discretionary acts

48

include, but are not limited to:

49

1. Decisions relating to which investigatory leads or

50

theories to pursue;

51

2. Decisions relating to which individuals to question; and

52

3. Decisions relating to which properties to search and

53

under what conditions.

54

     Section 4.  Paragraph (b) of subsection (2) of section

55

29.0081, Florida Statutes, is amended to read:

56

     29.0081  County funding of additional court personnel.--

57

     (2)  The agreement shall, at a minimum, provide that:

58

     (b)  The personnel whose employment is funded under the

59

agreement are hired, supervised, managed, and fired by personnel

60

of the judicial circuit. The county shall be considered the

61

employer for purposes of s. 440.10 and chapter 443. Employees

62

funded by the county under this section and other county

63

employees may be aggregated for purposes of a flexible benefits

64

plan pursuant to s. 125 of the Internal Revenue Code of 1986. The

65

judicial circuit shall supervise the personnel whose employment

66

is funded under the agreement; be responsible for compliance with

67

all requirements of federal and state employment laws, including,

68

but not limited to, Title VII of the Civil Rights Act of 1964,

69

Title I of the Americans with Disabilities Act, 42 U.S.C. s.

70

1983, the Family Medical Leave Act, the Fair Labor Standards Act,

71

chapters 447 and 760, and ss. 112.3187, 440.105, and 440.205; and

72

fully indemnify the county from any liability under such laws, as

73

authorized by s. 768.28(20) s. 768.28(19), to the extent such

74

liability is the result of the acts or omissions of the judicial

75

circuit or its agents or employees.

76

     Section 5.  Paragraph (h) of subsection (3) of section

77

163.01, Florida Statutes, is amended to read:

78

     163.01  Florida Interlocal Cooperation Act of 1969.--

79

     (3)  As used in this section:

80

     (h)  "Local government liability pool" means a reciprocal

81

insurer as defined in s. 629.021 or any self-insurance program

82

created pursuant to s. 768.28(17) s. 768.28(16), formed and

83

controlled by counties or municipalities of this state to provide

84

liability insurance coverage for counties, municipalities, or

85

other public agencies of this state, which pool may contract with

86

other parties for the purpose of providing claims administration,

87

processing, accounting, and other administrative facilities.

88

     Section 6.  Paragraph (a) of subsection (2) of section

89

456.048, Florida Statutes, is amended to read:

90

     456.048  Financial responsibility requirements for certain

91

health care practitioners.--

92

     (2)  The board or department may grant exemptions upon

93

application by practitioners meeting any of the following

94

criteria:

95

     (a)  Any person licensed under chapter 457, s. 458.3475, s.

96

459.023, chapter 460, chapter 461, s. 464.012, chapter 466, or

97

chapter 467 who practices exclusively as an officer, employee, or

98

agent of the Federal Government or of the state or its agencies

99

or its subdivisions. For the purposes of this subsection, an

100

agent of the state, its agencies, or its subdivisions is a person

101

who is eligible for coverage under any self-insurance or

102

insurance program authorized by the provisions of s. 768.28(17)

103

s. 768.28(16) or who is a volunteer under s. 110.501(1).

104

     Section 7.  Paragraph (a) of subsection (5) of section

105

458.320, Florida Statutes, is amended to read:

106

     458.320  Financial responsibility.--

107

     (5)  The requirements of subsections (1), (2), and (3) do

108

not apply to:

109

     (a)  Any person licensed under this chapter who practices

110

medicine exclusively as an officer, employee, or agent of the

111

Federal Government or of the state or its agencies or its

112

subdivisions. For the purposes of this subsection, an agent of

113

the state, its agencies, or its subdivisions is a person who is

114

eligible for coverage under any self-insurance or insurance

115

program authorized by the provisions of s. 768.28(17) s.

116

768.28(16).

117

     Section 8.  Paragraph (a) of subsection (5) of section

118

459.0085, Florida Statutes, is amended to read:

119

     459.0085  Financial responsibility.--

120

     (5)  The requirements of subsections (1), (2), and (3) do

121

not apply to:

122

     (a)  Any person licensed under this chapter who practices

123

medicine exclusively as an officer, employee, or agent of the

124

Federal Government or of the state or its agencies or its

125

subdivisions. For the purposes of this subsection, an agent of

126

the state, its agencies, or its subdivisions is a person who is

127

eligible for coverage under any self-insurance or insurance

128

program authorized by the provisions of s. 768.28(17) s.

129

768.28(16).

130

     Section 9.  Paragraph (c) of subsection (9) of section

131

616.242, Florida Statutes, is amended to read:

132

     616.242  Safety standards for amusement rides.--

133

     (9)  INSURANCE REQUIREMENTS.--

134

     (c)  The insurance requirements imposed under this

135

subsection do not apply to a governmental entity that is covered

136

by the provisions of s. 768.28(17) s. 768.28(16).

137

     Section 10.  Section 624.461, Florida Statutes, is amended

138

to read:

139

     624.461  Definition.--For the purposes of the Florida

140

Insurance Code, "self-insurance fund" means both commercial self-

141

insurance funds organized under s. 624.462 and group self-

142

insurance funds organized under s. 624.4621. The term "self-

143

insurance fund" does not include a governmental self-insurance

144

pool created under s. 768.28(17) s. 768.28(16).

145

     Section 11.  Subsection (6) of section 624.462, Florida

146

Statutes, is amended to read:

147

     624.462  Commercial self-insurance funds.--

148

     (6)  A governmental self-insurance pool created pursuant to

149

s. 768.28(17) s. 768.28(16) shall not be considered a commercial

150

self-insurance fund.

151

     Section 12.  Paragraph (b) of subsection (3) of section

152

627.733, Florida Statutes, is amended to read:

153

     627.733  Required security.--

154

     (3)  Such security shall be provided:

155

     (b)  By any other method authorized by s. 324.031(2), (3),

156

or (4) and approved by the Department of Highway Safety and Motor

157

Vehicles as affording security equivalent to that afforded by a

158

policy of insurance or by self-insuring as authorized by s.

159

768.28(17) s. 768.28(16). The person filing such security shall

160

have all of the obligations and rights of an insurer under ss.

161

627.730-627.7405.

162

     Section 13.  Subsection (3) of section 984.09, Florida

163

Statutes, is amended to read:

164

     984.09  Punishment for contempt of court; alternative

165

sanctions.--

166

     (3)  ALTERNATIVE SANCTIONS.--Each judicial circuit shall

167

have an alternative sanctions coordinator who shall serve under

168

the chief administrative judge of the juvenile division of the

169

circuit court, and who shall coordinate and maintain a spectrum

170

of contempt sanction alternatives in conjunction with the circuit

171

plan implemented in accordance with s. 790.22(4)(c). Upon

172

determining that a child has committed direct contempt of court

173

or indirect contempt of a valid court order, the court may

174

immediately request the alternative sanctions coordinator to

175

recommend the most appropriate available alternative sanction and

176

shall order the child to perform up to 50 hours of community-

177

service manual labor or a similar alternative sanction, unless an

178

alternative sanction is unavailable or inappropriate, or unless

179

the child has failed to comply with a prior alternative sanction.

180

Alternative contempt sanctions may be provided by local industry

181

or by any nonprofit organization or any public or private

182

business or service entity that has entered into a contract with

183

the Department of Juvenile Justice to act as an agent of the

184

state to provide voluntary supervision of children on behalf of

185

the state in exchange for the manual labor of children and

186

limited immunity in accordance with s. 768.28(12) s. 768.28(11).

187

     Section 14.  Subsection (3) of section 985.037, Florida

188

Statutes, is amended to read:

189

     985.037  Punishment for contempt of court; alternative

190

sanctions.--

191

     (3)  ALTERNATIVE SANCTIONS.--Each judicial circuit shall

192

have an alternative sanctions coordinator who shall serve under

193

the chief administrative judge of the juvenile division of the

194

circuit court, and who shall coordinate and maintain a spectrum

195

of contempt sanction alternatives in conjunction with the circuit

196

plan implemented in accordance with s. 790.22(4)(c). Upon

197

determining that a child has committed direct contempt of court

198

or indirect contempt of a valid court order, the court may

199

immediately request the alternative sanctions coordinator to

200

recommend the most appropriate available alternative sanction and

201

shall order the child to perform up to 50 hours of community-

202

service manual labor or a similar alternative sanction, unless an

203

alternative sanction is unavailable or inappropriate, or unless

204

the child has failed to comply with a prior alternative sanction.

205

Alternative contempt sanctions may be provided by local industry

206

or by any nonprofit organization or any public or private

207

business or service entity that has entered into a contract with

208

the Department of Juvenile Justice to act as an agent of the

209

state to provide voluntary supervision of children on behalf of

210

the state in exchange for the manual labor of children and

211

limited immunity in accordance with s. 768.28(12) s. 768.28(11).

212

     Section 15.  This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.