Kurtz v. City of North Miami, 92-2038
| Decision Date | 12 October 1993 |
| Docket Number | No. 92-2038,92-2038 |
| Citation | 625 So.2d 899 |
| Parties | , 8 Indiv.Empl.Rts.Cas. (BNA) 1611, 18 Fla. L. Weekly D2210 Arlene KURTZ, Appellant, v. The CITY OF NORTH MIAMI, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Mitrani, Rynor & Gallegos, P.A., and Pamela A. Chamberlin, Miami, for appellant.
Pedro P. Echarte, Jr., Miami, Thomas M. Pflaum, Micanopy, for appellee.
Before HUBBART, JORGENSON and COPE, JJ.
By this appeal we determine whether the City of North Miami may require prospective job applicants to refrain from lawful conduct unrelated to job functions in order to be considered for employment. We conclude that it may not and reverse the summary judgment entered against Arlene Kurtz.
Kurtz submitted an employment application for a clerk-typist position with the City of North Miami. In December 1989, Kurtz took and passed a written examination required for all prospective applicants. In March 1990, the City Manager promulgated Administrative Regulation 1-46. The regulation requires all job applicants to sign an affidavit stating that they have not used tobacco or tobacco products for at least one year immediately preceding the application. 1 According to the regulation, the objective is to reduce both health costs and the amount of productivity lost to absenteeism. 2
In May 1990, Kurtz was notified that there was an opening for a clerk-typist. At her interview, she was informed of Regulation 1-46. Kurtz told the interviewer that she was a smoker and could not truthfully sign an affidavit to comply with the regulation. The interviewer told Kurtz that she would not be considered for employment until she was smoke free for one year.
Kurtz filed a complaint seeking to enjoin enforcement of the regulation and asking for a declaratory judgment finding the regulation unconstitutional. Kurtz moved for summary judgment, and the City filed a cross-motion for summary judgment. The City filed numerous exhibits supporting the position that smoking is hazardous to an individual's health and that the economic costs of hiring a smoker are higher than the costs of hiring a non-smoker. The court found that the regulation did not violate any provision of either the Florida or the United States constitution.
The City argues it has a compelling interest in saving money for taxpayers by employing only healthy applicants. 3 However, if the City has a compelling interest in saving money for taxpayers by employing only healthy applicants, the City could conceivably seek to regulate other lawful private activities that affect a person's physical health such as drinking, eating, exercising, and engaging in certain sexual practices. 4 We find that Kurtz' privacy rights are involved when the City requires her to refrain from smoking for a year prior to being considered for employment. Although the City has an interest in saving taxpayers money by decreasing insurance costs and increasing productivity, such interest is not sufficient to outweigh the intrusion into Kurtz' right of privacy. Regulation 1-46 violates article I, section 23, of the Florida Constitution as the regulation constitutes an impermissible intrusion into Kurtz' private conduct and has no relevance to the performance of the duties involved with a clerk-typist.
Because Florida has its own express constitutional provision guaranteeing the right of privacy, article I, section 23, 5 we first examine the regulation under the Florida Constitution. If the regulation fails to withstand constitutional muster under Florida law, no further analysis under federal law is required. See In re T.W., 551 So.2d 1186, 1190 (Fla.1989).
Article I, section 23, provides that "[e]very natural person has the right to be let alone and free from governmental intrusion into his private life." Art. I, Sec. 23, Fla. Const. This explicit constitutional right of privacy embraces more privacy interests and extends more protection than the right of privacy provided under the due process clause of the federal constitution. In re T.W., 551 So.2d at 1192; Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985). As recognized by the Florida Supreme Court in Winfield,
[t]he citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23 of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23 was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words "unreasonable" or "unwarranted" before the phrase "governmental intrusion" in order to make the privacy right as strong as possible.
Before the right of privacy is implicated, however, there must be a legitimate expectation of privacy. Winfield, 477 So.2d at 547. If there is a legitimate expectation of privacy, the government has the burden of proving that the challenged regulation serves a compelling state interest and accomplishes its goals through the use of the least intrusive means. Id. The Florida Supreme Court has found a legitimate expectation of privacy in cases dealing with personal autonomy and in cases dealing with disclosure of private information. See In re Guardianship of Browning, 568 So.2d 4 (Fla.1990) (right of self-determination); Shaktman v. State, 553 So.2d 148 (Fla.1989) (); In re T.W., 551 So.2d at 1186 (); Rasmussen v. South Florida Blood Serv., Inc., 500 So.2d 533 (Fla.1987) (); Winfield, 477 So.2d at 544 (); Florida Bd. of Bar Examiners Re: Applicant, 443 So.2d 71 (Fla.1983) ().
The right of privacy is involved when the City passes a regulation which effectively denies applicants the opportunity to be considered for employment with the City merely for engaging in lawful conduct unrelated to job functions. 6 An applicant does not have a constitutional right to government employment. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 311, 96 S.Ct. 2562, 2565, 49 L.Ed.2d 520 (1976). An applicant, however, has a legitimate expectation of privacy when the government through requirements for employment seeks to intrude into the applicant's personal life. In Florida Bd. of Bar Examiners, the Florida Supreme Court recognized that although a bar applicant had no constitutional right to be admitted to the Florida Bar, the applicant had a legitimate expectation of privacy in not disclosing certain information. 443 So.2d at 74. Nevertheless, because the information was relevant to determine the applicant's fitness to practice law, the state had a compelling interest in obtaining the information. Id. at 75.
Regulation 1-46 intrudes into an applicant's private life. Although Florida has its own express constitutional clause guaranteeing the right of privacy, we look to federal law for guidance. In Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir.1987), the court upheld a regulation prohibiting firefighter trainees from smoking cigarettes either on or off duty for a period of one year. The court distinguished smoking from the liberty interests the Supreme Court has recognized as fundamental. Id. at 541. The court, however, specifically acknowledged that the regulation infringed upon the liberty and privacy interest of firefighter trainees because
[t]he regulation reaches well beyond the work place and well beyond the hours for which they receive pay. It burdens them after their shift has ended, restricts them on weekends and vacations, in their automobiles and backyards and even, with the doors closed and the shades drawn, in the private sanctuary of their own homes.
Id. at 541 (emphasis added). The court further recognized that a balancing or rational connection test was required to prevent the state from "arbitrarily and for no reason, condition[ing] employment upon an agreement to refrain from any of a nearly limitless number of innocent, private and personal activities." Id. at 542. 7
Like the regulation in Grusendorf, Regulation 1-46 restricts Kurtz' smoking habit even in the privacy of her own home. Although the federal constitution requires a compelling state interest only in cases involving fundamental rights, the range of privacy issues requiring a compelling interest standard are far broader under article I, section 23. The City's attempt to regulate lawful conduct unrelated to job functions is the type of activity the citizens of Florida sought to restrict when they opted to approve section 23.
The City failed to meet its burden of showing a compelling interest sufficient...
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...requiring all job applicants to sign an affidavit stating that they have not used tobacco for at least one year. Kurtz v. City of North Miami, 625 So.2d 899 (Fla. 3d DCA 1993). In that case, the regulation expressly required governmental inquiry concerning private matters.8 The concurring o......
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City of North Miami v. Kurtz
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