City of North Miami v. Kurtz

Supreme Court of Florida
653 So. 2d 1025 (1995)

ELI5:

Rule of Law:

A government employer's regulation requiring job applicants to be non-smokers for one year prior to application does not violate the Florida Constitution's right to privacy because individuals do not have a reasonable expectation of privacy in their smoking status.

Facts:

To reduce costs and increase productivity, the City of North Miami adopted Administrative Regulation 1-46.
The regulation requires all job applicants to sign an affidavit stating they have not used tobacco products for at least one year immediately preceding their application.
The policy does not apply to current employees, and once hired, an individual is free to resume smoking.
The City of North Miami is a self-insurer, paying for 100% of its employees' medical expenses.
The City presented evidence that each smoking employee costs as much as $4,611 more per year than a non-smoking employee.
Arlene Kurtz applied for a clerk-typist position with the City.
Kurtz informed her interviewer that she was a smoker and could not truthfully sign the required affidavit.
As a result, the City informed Kurtz that she would not be considered for employment.

Procedural Posture:

Arlene Kurtz filed an action in the state trial court seeking a declaratory judgment that the City's regulation was unconstitutional.
The trial court granted summary judgment in favor of the City of North Miami.
Kurtz, as appellant, appealed to the Florida Third District Court of Appeal.
The District Court of Appeal reversed the trial court's decision, finding the regulation unconstitutional.
The District Court of Appeal then certified a question of great public importance to the Supreme Court of Florida for review.

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Issue:

Does a municipal regulation requiring job applicants to attest that they have not used tobacco for one year prior to applying for employment violate the right to privacy under Article I, Section 23 of the Florida Constitution?

Opinions:

Majority - Justice Overton

No. The municipal regulation does not violate the right to privacy under the Florida Constitution because job applicants do not have a legitimate expectation of privacy in their smoking habits. The court reasoned that in contemporary society, individuals are routinely asked about their smoking status in public accommodations like restaurants, hotels, and rental car agencies. Therefore, disclosing this information is not an intrusion into a private zone protected by the constitution. Because no legitimate expectation of privacy is implicated, the court does not need to apply a compelling state interest test. However, the court noted that even if the test were applied, the City's interest in reducing significant health care costs as a self-insurer would qualify as a compelling interest, and the regulation, which only affects applicants and not current employees, is the least intrusive means of achieving that goal.

Dissenting - Justice Kogan

Yes. The regulation is unconstitutional. The dissent argues that the policy is a 'speculative pretense' rather than a rational policy because new hires are free to start smoking immediately after being employed, which undermines the stated goal of reducing costs. This poor fit between the means and the end suggests the privacy violation is not justified. Furthermore, the dissent warns of a 'slippery slope,' where allowing this inquiry could lead to more intrusive governmental inquiries into applicants' lawful off-duty conduct, such as sexual behavior, procreation plans, or genetic predispositions to disease, which would clearly violate the right to privacy.

Analysis:

This decision establishes that Florida's explicit constitutional right to privacy is not absolute and is contingent upon a 'legitimate expectation of privacy' as defined by societal norms. By finding no such expectation for smoking, the court allows public employers to regulate the off-duty conduct of applicants based on direct financial justifications. This ruling distinguishes between applicants and current employees, creating a precedent that may permit other pre-employment lifestyle inquiries that have a demonstrable financial impact on a government entity. The case illustrates the crucial role of the threshold privacy expectation inquiry, which can preclude the need for the stricter compelling state interest analysis.

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