City of Palm Bay v. Bauman, s. 84-1026

• Decision Date: 26 September 1985
• Docket Number: Nos. 84-1026,84-1715,s. 84-1026
• Citation: 10 Fla. L. Weekly 2218,475 So.2d 1322
• Parties: 10 Fla. L. Weekly 2218 CITY OF PALM BAY, Appellant/Cross-Appellee, v. Donald J. BAUMAN, et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1322

475 So.2d 1322

10 Fla. L. Weekly 2218

CITY OF PALM BAY, Appellant/Cross-Appellee, v. Donald J. BAUMAN, et al., Appellees/Cross-Appellants.

Nos. 84-1026, 84-1715.

District Court of Appeal of Florida Fifth District.

Sept. 26, 1985.

Leonard A. Carson and John D.C. Newton, II of Carson & Linn, P.A., Tallahassee, and Nicholas F. Tsamoutales, Palm Bay, for appellant/cross-appellee.

William H. Harrell, Kerry I. Evander of Reinman, Harrell, Silberhorn, Moule & Graham, Melbourne, for appellees/cross-appellants.

ORFINGER, Judge.

The City of Palm Bay appeals a final judgment permanently enjoining it from requiring its police officers and fire fighters to give urine specimens at random and unspecified times for the purpose of determining the presence of controlled substances, unless probable cause exists to believe the employee has been using a controlled substance, or except during regularly scheduled periodic physical examinations. With modifications, we affirm.

The factual background and legal analysis are succinctly set forth in the trial court's order which is set forth in pertinent part.

This action was tried before the Court. On the evidence presented, the Court finds as follows:

1. POLICE DEPARTMENT:

(a) On February 24, 1984, the following notice was addressed "TO: ALL SWORN OFFICERS" and signed by City Manager, ROBERT G. MATTE, and by Chief of Police, CHARLES R. SIMMONS:

"The City's Personnel Policies and Procedures prohibit possession, consumption or being under the influence of drugs or intoxicating substances while on duty because sworn police officers are subject to call-out on a twenty-four (24) hour basis. Consumption of non-prescribed drugs or other illegal substance at any time is strictly prohibited. If a police officer has consumed alcohol prior to being called to duty, he/she shall notify the shift supervisor of that fact."

"The City is actively taking steps to enforce the above policy. Urine samples may be required from police officers on a random basis. Police officers found to have consumed non-prescribed drugs or other illegal substances will be subject to discipline or discharge."

(b) All members of the Police Department were then instructed to submit to urine tests to determine if marijuana had been used. The police officers were told that if they refused to submit to urine testing, they would be subject to discipline up to and including termination. In addition, the refuser would be reported to the State Police Standards Commission for refusing to obey a lawful order. ...

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2. FIRE DEPARTMENT:

(a) Prior to June 1983 two (2) fire fighters told David Green, Fire Chief of the City of Palm Bay, that they had used marijuana. These individuals were not terminated, but were ordered to counseling.

(b) In June 1983, pursuant to a recommendation made by the City personnel director and implemented by the fire chief, all fire fighters were ordered to take annual physicals. One of the reasons for the physicals was to test urine specimens for evidence of past use of marijuana, although this was not disclosed to the fire fighters (except one was told during the testing). This testing revealed two "positives". These individuals were not terminated, but ordered to counseling.

(c) On or just before October 18, 1983, the City Manager, ROBERT G. MATTE, addressed the following notice to all City employees:

"The City's Personnel Policies and Procedures provide--the possession, consumption or being under the influence of drugs or intoxicating beverage while on duty is considered a major offense. Violations may entail dismissal. The City will strictly apply the disciplinary measures provided."

"The proviso relating the offense to 'on duty' status must be judiciously evaluated. Those subject to call during off duty hours, which applies to most personnel in the City, are expected to be in a fit condition to respond and effectively perform assigned duties when they are required to report."

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(e) In February 1984, the City Manager ordered all fire fighters to submit to urine testing. In fact, Chief Green was told by the City Manager to advise the fire fighters (and he did so advise them) that if they did not consent to the testing, they would be terminated. The tests revealed three (3) positives: ...

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4. POLICY CONSIDERATIONS:

(a) Fire fighters must be possessed of all their physical and mental faculties on the job. Their safety and the safety of property, their fellow fire fighters, and the public is at stake.

(b) Police officers use weapons, drive vehicles and make instant judgments involving life and death. They, too, must be possessed of all their normal faculties. In addition, they are sworn to enforce the law and must have credibility if public confidence and respect is to be maintained. Known use of illegal substances would undermine that confidence and respect.

(c) Public employees are legitimately subject to more regulation of their activities than the general populace.

(d) A non-probationary municipal employee has a constitutionally protected property interest in such employment entitling him to protection against unjust and unlawful job deprivation. See, Farmer v. City of Fort Lauderdale, 427 So.2d 187 (Fla.1983).

5. CONSTITUTIONAL ISSUES:

(a) Self Incrimination (5th and 14th Amendments to U.S. Constitution and Art. 1, Sec. 9, Fla. Const.). Since this privilege applies only to testimonial communications, it is not a bar to the action complained of here.

(b) Search and Seizure (4th Amendment to U.S. Constitution and Art. 1, Sec. 12, Fla. Const.).

(1) This case does not involve urine testing conducted as a part of annual or other specified physical examination delineated in City policy. Certainly, municipal police officers and fire fighters must expect to meet required minimum standards of physical condition in order to be hired and retained. Physical examinations conducted to insure that those standards are met are to be reasonably expected even though urine testing is a part of those examinations. Likewise, this case does not involve urine testing either alone or as a part of other physical examinations required by virtue of a delineated City policy invoked on evidence of suspected diminished capacity. Here, the City states that all fire fighters and police officers must submit to urine testing or be subject to discipline up to and including discharge.

(2) A citizen has a reasonable expectation of privacy in the discharge and disposition of his urine. McDonell v. Hunter, 612 Fed. Supp. 1122 (S.D.Iowa 1984) [affirmed, 746 F.2d 785 (8th Cir.1984) ]. At the same time, police officers and fire fighters, because of the nature of their jobs, must reasonably expect their employer to have, and to demonstrate, legitimate concern that their ability to discharge their job responsibilities is not compromised by the use of controlled substances.

(3) The proposed compelled production and surrender of the urine for testing, under the evidence presented here, constitutes a search and seizure within the purview of the law. But, the City argues, by signing the "Notice", consent was given to the search. This argument is without substance for it is abundantly clear from the evidence that such signatures were procured under threat of disciplinary action. Consent cannot be inferred from an act so manifestly coerced.

(4) The next question is whether such testing, considered in the light of its scope, nature, incidence and effect, is unreasonable when the immediate end sought is weighed against the private right affected. See, Oliver v. United States, 239 F.2d 818, Cert. Dismd. 353 U.S. 952, 1 L.Ed.2d 858, 77 S.Ct. 865 (1957). As in McDonnell [sic] [McDonell], supra, Palm Bay's "policy" does not identify the person, or persons, by name or position, who are authorized to require employees to provide a urine sample. The "policy" does not articulate any standards for its implementation and no separate written standards have been promulgated. Reasonable suspicion plays no part--the testing is to be all encompassing. Yet, as noted above, the Chief of Police has received no information, and has no independent knowledge, that any member of the Palm Bay Police Department has used marijuana. The incidence of known marijuana use among fire fighters is set forth above. The total known involvement on and off the job, even after urine testing, is less than six (6) people. While not suggesting that this figure is insignificant, it is hardly a legal springboard for the trip the City now seeks to take. Without a scintilla of suspicion directed toward them, many dedicated fire fighters and police officers are told, in effect, to submit to such testing and prove themselves innocent, or suffer disciplinary action. When the immediate end sought is weighed against the private right affected, the proposed search and seizure is constitutionally unreasonable.

(5) The Court finds urine testing not performed as part of physical examinations required annually or at other specified career times by City personnel policy, and designed to determine the presence of controlled substances, may constitutionally be required only on the basis of probable cause, to wit: reasonable suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in believing the police officer or fire fighter to have been on the job using, or after having recently used, a controlled substance. The person, or persons, authorized to require such urine testing should be designated in writing by the City Manager.

6. CONCLUSION:

The Court, therefore, finds that the urine testing required by the City herein constitutes an unreasonable search and seizure, violative of the 4th Amendment to the U.S. Constitution and Art. 1, Sec. 12, Fla. Const. and should be enjoined.

Incorporating these findings, the trial court entered a final judgment which provided:

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That...