Beattie v. City of St. Petersburg Beach, No. 86-1562-Civ-T-13.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: CASTAGNA
• Citation: 733 F. Supp. 1455
• Parties: Keith BEATTIE, Plaintiff, v. CITY OF ST. PETERSBURG BEACH, et al., Defendants.
• Decision Date: 30 January 1990
• Docket Number: No. 86-1562-Civ-T-13.

733 F. Supp. 1455

Keith BEATTIE, Plaintiff,
v.
CITY OF ST. PETERSBURG BEACH, et al., Defendants.

No. 86-1562-Civ-T-13.

United States District Court, M.D. Florida, Tampa Division.

January 30, 1990.

Ronald B. Halpern, Mark Brown, Rebecca Morgan, American Civil Liberties Union, St. Petersburg, Fla., for plaintiff.

Luis Prats, Blasingame, Forizs & Smiljanich, P.A., St. Petersburg, Fla., for defendants.

SUMMARY JUDGMENT

CASTAGNA, District Judge.

The parties have stipulated to the relevant facts in this case. The plaintiff, Keith Beattie, is employed by the City of St.

733 F. Supp. 1456

Petersburg Beach (the City) as a firefighter and has been a member of the Internal Association of Firefighters AFL-CIO (the Union) since he was employed on August 24, 1982. In October of 1983, the City and the Union entered into a collective bargaining agreement which provides that the City has the right to "hire, examine, classify, promote, train, transfer, assign, schedule and retain employees in positions with the City" and that the City shall have the right to "establish, implement, and maintain an effective internal security practice." See Exhibit F of the Statement of Facts, paragraph 3.1 F and M. The agreement requires the firefighters to submit to annual physical examinations. The City has required firefighters to submit to annual physicals since 1974

The purpose of the physicals is to determine whether the firefighters are fit to perform their job-related duties. The physicals are given in October and November of each year and are conducted by physicians of the City's choice. Since their inception in 1974, the physicals have included the taking of urine samples from each firefighter. The plaintiff has given a urine sample every year since 1983, but the samples have never been tested for drugs. The samples are always taken in private at a hospital or a doctor's office.

Under their union contract, every firefighter is entitled to have a physician of his choice render a second opinion concerning any disputed aspect of his physical, including the drug test results. If the second opinion differs from the opinion of the City's doctor, then the City and the firefighter are entitled to employ a third physician to render an opinion on the disputed medical question. The third physician's opinion is final.

In August of 1986, the City decided to incorporate into the annual physicals a urinalysis to determine whether the firefighters use controlled substances. The purpose of incorporating the test into the physicals is to provide the City with additional information concerning the fitness of its firefighters to perform their job-related duties. The final decision to include a drug test in the physicals was made by defendant Royle in his capacity as City Manager. On October 16, 1986, he circulated a memorandum to all firefighters informing them that their annual physical exam would include a drug test. On October 17, 1986, the City implemented its testing program.

Under the plan, the firefighters are required to sign a consent form evidencing their agreement to submit to the drug test. Failure to consent results in a firefighter's being sent home for that day without pay. Following an initial refusal, the firefighter is scheduled for a second test. If he again refuses to consent to the test, he is immediately dismissed.

If a firefighter consents to the test and the test is positive, then a second test is administered in order to verify the first test. If the second test is positive, the firefighter is required to seek rehabilitation through the Tampa Bay Health Plan. If the firefighter refuses treatment he is immediately terminated.

The plaintiff's physical, including the drug test, was scheduled for October 29, 1986. The defendants admit that they had no reasonable suspicion or probable cause to suspect that the plaintiff was using controlled substances either on or off duty. The plaintiff agreed to the physical exam, but refused to consent to the drug test. The plaintiff's superiors, defendants Hartman and Headley, instructed plaintiff to leave work and informed him that he would not be paid for that day's work. The plaintiff's physical was rescheduled for November 4, 1986, but never took place due to an illness. As of the date of this Order, the plaintiff has not been tested.

The plaintiff challenges the City's drug testing program, arguing that it violates the Fourth Amendment to the United States Constitution. The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. ..." The basic purpose of the amendment is "to safeguard the privacy and security of individuals against arbitrary invasions by government officials." New Jersey

733 F. Supp. 1457

v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720 (1984) quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). The Fourth Amendment is implicated whenever a governmental entity conducts an unreasonable search, even when the government is acting as an employer. National Treasury Employees Union v. Von Raab, 489 U.S. ___, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989); O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 1498, 94 L.Ed.2d 714 (1987) (plurality opinion)

To determine whether a particular governmental activity violates the Fourth Amendment, the court must decide whether the activity constitutes a search, and, if it does, whether the search is unreasonable. Here, it is beyond dispute that the urinalysis at issue in this case constitutes a search. See Von Raab, 109 S.Ct. at 1390; Skinner v. Railway Labor Executives' Association, 489 U.S. ___, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989). An urinalysis is a highly intrusive means of investigating public employees. As the United States Supreme Court recognizes:

There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is

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