# Petition for Writ of Certiorari — Kurtz v. City of North Miami

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1043

## Text

(\) eT ete
B5- 54 LZ oc1 5_ 1995

r OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES

NO.

OCTOBER TERM, 1995

ARLENE KURTZ,
Petitioner,
vs.
CITY OF NORTH MIAMI, FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF FLORIDA

PETITION FOR WRIT OF CERTIORARI

PAMELA A. CHAMBERLIN
Counsel of Record

Mitrani, Rynor & Gallegos, P.A.
SunBank International Center
Suite 2200

One Southeast Third Avenue
Miami, Florida 33131
(305)358-0050

Cooperating Attorney for the
American Civil Liberties Union
Foundation of Florida, Inc.

QUESTION PRESENTED FOR REVIEW

Whether the City of North Miami’s regulation requiring that any
applicant for any City job execute, as a condition of applying for
employment, an affidavit stating that he or she has not smoked or used -
tobacco products for the preceding twelve months violates the Due
Process Clause of the Constitution of the United States, where the
regulation is conceded by the City to be unrelated to job functions or
performance and where the City’s only asserted justification for the
regulation is the reduction of costs resulting from smoking-related
illnesses.

li

PARTIES TO THE PROCEEDING

All parties are named in the caption of the case.

lil

TABLE OF CONTENTS

Page
ES cose rcccccasccececcovsceens iv
Te. io cen cece eee se cecepereoerersecese |
ESE EY PT PRE ER ER ES TET TEER 1
CONSTITUTIONAL PROVISION, STATUTE AND
REGULATION INVOLVED IN THIS CASE .............. 1
PRCURMEEINUE GID EEUU GUE 8 coe Cb eee eee csccccccrces 1
REASONS FOR ALLOWANCE OF THE WRIT ............ 6
I. The Florida Supreme Court’s Decision
Upholding Administrative Regulation 1-46
Conflicts with Decisions of this Court
Holding that Conditions or Restrictions on
Government Employment Opportunities
Must Be Rationally Related to
Job Functions or Performance ............-.. 6
Il. The Florida Supreme Court’s Ruling that the
City’s Asserted Interest in Reducing Costs
Resulting from Smoking-Related Illnesses
Constitutes a "Rational Basis" for a Hiring
Regulation that is Unrelated to Job
Functions or Performance and that Intrudes
into the Private, Lawful, Off-Duty Conduct of
Job Applicants Presents an Important
Question of Federal Law Which Has Not
Been, but Should Be, Decided by this Court .... 10
ee eta te eé een cs bene sieaene 12
APPENDIX
Administrative Regulation 1-46 ...............-.+-- A-l

TABLE OF AUTHORITIES

Page
Cases
Board of Regents v. Roth, 408 U.S. 564 (1972) ..........005- 6
City of North Miami v. Kurtz, 653 So.2d 1025 (Fla. 1995),
(quashing Kurtz v. City of North Miami, 625 So.2d 899
CUR. TH, GE: AO. TIO: ech tceuevies ace vedaceess 1,2

DeWeese v. Town of Palm Beach, 812 F.2d 1365 (11th Cir. 1987) 8

Dilulio v. Board of Fire and Police Commissioners,

682 F.2d 666 (7th Cir.), cert. denied, 459 U.S. 1038 (1982) ...... 8
Grusendorf v. City of Oklahoma City,

G6 F.Bd SOP (CU Cie. BORG oo 0 6A oo aie o cic dts ccincc cen 8,9
Hander v. San Jacinto Junior College, 519 F.2d 273 (Sth Cir.),
clarified on rehearing granted, 522 F.2d 204 (Sth Cir. 1975) ...... 8
Kelley v. Johnson, 425 U.S. 238 (1976) .......-.eeeeeeeee 6, 7
Keyishian v. Board of Regents, 385 U.S. 589 (1967) ........... 6
Konigsberg v. State Bar of California, 366 U.S. 36 (1961) ...... 8
Lansdale v. Tyler Junior College, 470 F.2d 659 (Sth Cir. 1972),

cant; dantod, 411 UWB. SOG CASTS) ccc ccasartenwcnccccccces 8
Liddell v. State, 731 F.2d 1294 (8th Cir.),

cert. dented, 469 U.S. $16 (1964) 2... cccccncccccccccccces 10
Massachusetts Board of Retirement v. Murgia,

pie Se fi ee Ps ee Pee Oe ee ee eee eee ee 7
Perry v. Sindermann, 408 U.S. 593 (1972) ......----eeeeeees 7
Reed v. Reed, 404 U.S. 71 (ISTD) 0 cc ccc cccccccccccccces 10
Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) ....... 7

vi

Schware v. Board of Bar Examiners, 353 U.S. 232 (1957) ......

Shelton v. Tucker, 364 U.S. 479 (1960) 2.0... 6. ccc cece eee
Vance v. Bradley, 440 U.S. 93 (1979) 2.0... cece ee eee ees

Watson v. City of Memphis, 373 U.S. 526 (1963) ............

Constitutional Provision

8 eB Pee reer errr er ere

Statute and Regulation

Gp Ue CE TDs ib anc 08 keke cea kk can ee satens

Secondary Authorities

Hill & Delacenserie, Procrustean Beds and Draconian Choices:
Lifestyle Regulations and Officious Intermeddlers--Bosses, Workers,
Courts, and Labor Arbitrators, 57 Mo. L. Rev. 51 (1992) .......

Kramer & Calder, The Emergence of Employees’ Privacy Rights:
Smoking and the Workplace,
8 The Labor Lawyer 313, 321-22 (1992) ...........-eeeeees

Maltby & Dushman, Whose Life Is It Anyway--Employer Control
of Off-Duty Behavior, 13 St. Louis Pub. L. Rev. 645 (1994) .....

Smith & Francis, Beyond the Company Town:
Employees’ Right to Privacy Regarding Off-Duty Conduct,
ESS ICD. Layer 3 (Fae. BSG) sc cc wccncccsccseccccucces

vii

PETITION FOR A WRIT OF CERTIORARI

Arlene Kurtz petitions for a writ of certiorari to review the
decision of the Supreme Court of Florida in this case.

OPINIONS BELOW

The opinion of the Dade County, Florida Circuit Court (App.
A-24) is unreported. The opinion of the Florida Third District Court
of Appeal is reported at 625 So.2d 899 (Fla. Dist. Ct. App. 1993). The
opinion of the Florida Supreme Court (App. A-35) is reported at 653
So.2d 1025 (Fla. 1995). The Florida Supreme Court’s order denying
Arlene Kurtz’s motion for rehearing (App. A-42) is unreported.

JURISDICTION

The Florida Supreme Court entered judgment in this case on
April 20, 1995. (App. A-35). It denied a timely motion for rehearing
on July 5, 1995. (App. A-42). This Court has jurisdiction pursuant to
title 28 United States Code section 1254(1).

CONSTITUTIONAL PROVISION, STATUTE AND
REGULATION INVOLVED IN THIS CASE

This case involves the validity of Administrative Regulation 1-46
of the City of North Miami, Florida. (App. A-1). The case arises
under the Due Process Clause of the Constitution of the United States,
amendment 14, (App. A-3), and title 42 United States Code section

1983. (App. A-3).

STATEMENT OF THE CASE

This case arises from a Florida state court suit by petitioner
Arlene Kurtz against the City of North Miami, Florida for injunctive
and declaratory relief to prevent the enforcement of Administrative
Regulation 1-46, which requires that any applicant for any job with the
City of North Miami execute an affidavit stating that the applicant has

l

not used tobacco products for the preceding twelve months. (App. A-1,
A-4).

The trial court, on cross-motions for summary judgment, upheld
the validity of Administrative Regulation 1-46 against Kurtz’s challenge
under the Due Process and Equal Protection guarantees of the United
States and Florida constitutions and under the Florida constitutional
right of privacy. (App. A-24). The Florida Third District Court of
Appeal reversed, holding that the regulation violated the explicit privacy
guarantee of-article I, section 23 of the Florida Constitution. Kurtz v.
City of North Miami, 625 So.2d 899 (Fla. Dist. Ct. App. 1993). The
Supreme Court of Florida quashed the district court’s decision, holding
that the regulation did not violate the Florida constitutional privacy
provision. City of North Miami v. Kurtz, 653 So.2d 1025, 1027-28 (Fla.
1995) (App. A-37 to A-39). The Florida Supreme Court then went on
to expressly hold that Administrative Regulation 1-46 in no way
implicated any privacy or liberty interest implicit in the United States
Constitution, and was therefore valid under federal as well as state
constitutional law. Jd. at 1028-29 (App. A-39).

On September 29, 1988, petitioner Arlene Kurtz submitted an
employment application to the City of North Miami, Florida. In
December 1989, the Kurtz took and passed a written examination
required for all prospective applicants for employment by the City of
North Miami. (App. A-36).

On March 9, 1990, the City adopted Administrative Regulation
1-46, which requires that "[a]ll applicants must be a nonuser (sic) of
tobacco or tobacco products for at least one year immediately preceding
application, as evidence (sic) by the sworn affidavit of the nee

(sic)." (App. A-1).

In May 1990, the City notified Kurtz that there was an opening
for a clerk-typist, and made an appointment to interview her for that
position. When Kurtz arrived for the interview on May 31, 1990, she
was informed by the interviewer that in order to be hired for any job
with the City, she would have to sign an affidavit stating that she did
not smoke or use tobacco products and that she had not done so within
the past twelve months. Kurtz told the interviewer that she could not
truthfully sign such an affidavit, and the interview was terminated.

(App. A-36).

EE A AT AL EY “STS ae

Because she submitted her application for employment prior to
the adoption of Administrative Regulation 1-46, Kurtz was not
informed of the regulation until the interview stage. A person seeking
to apply for a job after the regulation was adopted would not even be
permitted to submit an application unless he or she first signed the
affidavit required by the regulation.

Since that terminated interview, Kurtz has not been notified of
any other job openings with the City of North Miami. (App. A-10 to
A-12). As a smoker, Kurtz is disqualified from reapplying for any job
with the City so long as Administrative Regulation 1-46 remains in
effect.

Kurtz was in May 1990 and is now qualified for the job of clerk-
typist. (App. A-10 to A-12). Kurtz would be willing to abide by a
reasonable restriction on smoking while on duty or where smoking
would affect her fellow employees or others, as a condition of
employment by the City. (App. A-10 to A-12).

Kurtz, who is 52 years old, has smoked for 30 years, and has
been unsuccessful in trying to quit smoking. [R. III, pp. 2375-78, 2395
(depo. of Kurtz, pp. 5-8, 25)].

While the City’s sole asserted justification for its regulation is
the reduction of costs due to smoking-related illnesses, the City does
not bar its present employees from smoking or using tobacco, and
persons already employed by the City prior to the adoption of the
regulation were not required to execute affidavits regarding their
present or past smoking or tobacco use as a condition of their
continued employment by the City. The regulation only requires
abstinence from tobacco use during the one-year period prior to
applying for a job, and does not prevent the applicant from starting or
resuming smoking or using tobacco once hired. (App. A-36).

The City’s regulation against hiring smokers and persons who
have used tobacco within the past twelve months applies to all job
positions, regardless of whether any particular degree of physical fitness

1 References to the record in the state court are to
volume and page number, e.g.,[R. __, p. |.

3

is required for the job. The regulation prohibits any person who has
used any tobacco product from applying for any City job, regardless of
whether that individual is otherwise qualified for the job. (App. A-10
to A-12). The effect of the regulation is thus that a less-qualified non-
smoker may be hired by the City, while a more-qualified smoker would
not even be allowed to apply.

City job applicants who are smokers or tobacco users are not
individually screened or examined to determine their actual heaith
conditions or medical histories. (App. A-10 to A-12). As to Kurtz, for
example, City of North Miami Assistant City Manager Lee Feldman
admitted on deposition that the City has no knowledge as to Kurtz’s
actual health condition. [R. III, p. 2491 (depo. of Feldman, p. 68)].

The City does not offer job applicants who are smokers or
tobacco users the option of waiving insurance coverage. (App. A-10 to
A-12). The City also does not give smokers the option of paying for
any increased insurance costs that may result from their smoking.
(App. A-10 to A-12). In the case of Kurtz, she testified at her
deposition in this case that she already has her own private health
insurance coverage. [R. III, p. 2389 (depo. of Kurtz, p. 19)].

Persons who get past the application and interview stages are
given physical examinations before being hired, in order to determine
whether they have any preexisting conditions that would be excluded by
the City’s insurance program, and to determine if they are physically
capable of doing the jobs for which they are being considered. (App.
A-10 to A-12). However, only tobacco users are automatically screened
out at the initial application stage, and thus never given the opportunity
to demonstrate whether they in fact have any preexisting health
conditions related to smoking or tobacco use that may increase the
City’s insurance costs, or whether they are, tobacco-use notwithstanding,
physically capable of performing their job functions. In effect, as to
tobacco users, and only tobacco users, the City indulges an irrebuttable
presumption that they are unfit for all City employment.

At no time, before or after implementing Administrative
Regulation 1-46, did the City investigate actual health costs or
productivity data in order to determine whether off-duty tobacco use
had any real effect on the City’s health insurance costs or worker
productivity. [R. III, pp. 2468-69, 2487, 2500 (depo. of Feldman, pp.

4

45-46, 64, 78)}.

After the fact, in connection with this case, the City retained an
expert witness, James M. Shultz, who prepared an affidavit stating,
essentially, that smoking causes various diseases and is highly addictive.
The City’s expert summarized the opinions of several other experts
whose estimates of the cost to an employer of an employee’s smoking
varied from $135 per year to $4,611 per year. Shultz’s own estimate
was that employee smoking cost an employer $435 per year per male
smoker and $349 per female smoker. That affidavit, which was not
based on any actual health, productivity or insurance cost data supplied
by the City, in fact revealed that from 57 to over 90 percent of the
excess costs (such as lost productivity due to cigarette breaks and
second-hand smoke) attributed to employee smoking would be
eliminated by prohibiting smoking on the job. [R. II, pp. 458-64 (affid.
of Shultz, pp. 17-22)].

While the City’s sole justification for Administrative Regulation
1-46 is the regulation’s anticipated cost-saving impact, there was no
assertion in this case that such savings were needed to ensure the
operation or fiscal soundness of City government or services.

Assistant City Manager Feldman testified that the City does
have in place a voluntary smoking cessation program, but admitted that
he did not know or attempt to determine the success rate of that
program or whether that program has been or would be effective in
achieving the some or all of the same cost savings that Administrative
Regulation 1-46 was allegedly designed to realize. [R. III, pp. 2454-55
(depo. of Feldman, pp. 31-32)]. The City’s own expert noted that such
programs, properly implemented, can have up to a 40 percent
effectiveness rate. [R. II, p. 464 (affid. of Shultz, p. 22)).

The petitioner does not dispute that there is evidence to support
the conclusion that smoking and tobacco use are linked to a higher risk
of certain health problems. The petitioner does not dispute that
government employers may restrict, or even ban, smoking in
government buildings or during work hours. She does not dispute that
a government employer may, in order to reduce costs, implement a
voluntary smoking cessation program or similar voluntary measures.
She also does not dispute that a restriction on off-duty or even pre-
hiring tobacco use may be justified for certain jobs where a particular

5

level of physical fitness is legitimately needed in order to perform the
functions of such jobs.

What is challenged in this case is the City’s requirement that all
prospective applicants for all City jobs refrain from using tobacco for
a year prior to applying, where that requirement is completely unrelated
to job functions, performance, or qualifications.

REASONS FOR ALLOWANCE OF THE WRIT

L The Florida Supreme Court’s Decision Upholding
Administrative Regulation 1-46 Conflicts with Decisions
of this Court Holding that Conditions or Restrictions
on Government Employment Opportunities Must Be
Rationally Related to Job Functions or Performance.

Due process requires that conditions placed on an individual’s
right to seek government employment bear, at a minimum, some
rational relationship to the functions of the job sought or to the
qualifications of the job-seeker.

In Kelley v. Johnson, 425 U.S. 238 (1976), the Court held that
the Fourteenth Amendment Due Process Clause "affords not only a
procedural guarantee against the deprivation of ‘liberty,’ but likewise
protects substantive aspects of liberty against unconstitutional
restrictions by the State.” Id. at 244.

While Kurtz, as a mere applicant for employment, has no
Fourteenth Amendment “property” interest at stake in this case, she
does have a substantive liberty interest in being permitted to seek
government § mployment unconstrained by arbitrary and irrational hiring
restrictions.~ See Keyishian v. Board of Regents, 385 U.S. 589, 606-07

2 In the context of a procedural due process claim, the
Court has recognized that a state’s refusal to hire does not alone
implicate due process, but a regulation that would foreclose all
future employment prospects "would be a different case.” Board of
Regents v. Roth, 408 U.S. 564, 573-74 (1972). In the present case,
because Administrative Regulation 1-64 applies to all applicants for

6

(1967)>; also Rutan v. Republican Party of Illinois, 497 U.S. 62, 77 n.9
(1990); Perry v. Sindermann, 408 U.S. 593, 597 (1972).

In Kelley, the Court held that a county’s regulation of hair-length
for police officers, as part of its extensive regulation of the organization
of the uniformed police force, was rationally related to the goals of
making uniformed officers more recognizable to the public and to the
desire to promote esprit de corps within the force. 425 U.S. at 246-49.
The analysis of whether or not the government's asserted justification
for the regulation was "sufficiently rational,” id. at 248, thus turned on
whether the regulation had some, at least arguable, bearing on the
particular duties of police officers.

The Florida Supreme Court in the present case, while citing and
purporting to follow Kelley, (App. A-39), identified no aspect of the City
of North Miami’s regulation that relates in any way, rationally or
otherwise, to the functions of the particuiar clerk-typist job Kurtz was
seeking, to Kurtz’s qualifications for that job, or to the functions and
qualifications of all of the other City jobs and job applicants covered by
the regulation. Rather, the Court related the regulation solely to the
City’s asserted desire to decrease its costs flowing from insurance
premiums and employee sick-time. (App. A-39). The reasoning used
and the result reached by the Florida Supreme Court are in conflict
with Kelley and other decisions of this Court requiring a rational
relationship between a government hiring regulation and the duties and
functions of the job or jobs to which the regulation applies.

The Court’s reasoning and holding in Kelley are reflected in
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), in
which the Court upheld a mandatory retirement age for uniformed
police officers on the ground that the requirement that such officers
retire at age 50 was rationally related to the state’s legitimate interest

all City jobs, Kurtz is effectively barred from City employment in
any Capacity.

3 "[T]he theory that public employment which may be
denied altogether may be subjected to any conditions, regardless of
how unreasonable, has been uniformly rejected." Keyishian, 385
U.S. at 606-07.

in ensuring the physical preparedness of its uniformed force. Id. at 314-
15; also Vance v. Bradley, 440 U.S. 93, 98-103 (1979).

Likewise in Schware v. Board of Bar Examiners, 353 U.S. 232
(1957), in overturning New Mexico’s rule excluding from the practice
of law any person who had formerly been a member of the Communist
party, the Court held, "A State can require high standards of
qualification, such as good moral character or proficiency in its law,
before it admits an applicant to the bar, but any qualification must have
a rational connection with the applicant’s fitness or capacity to practice
law." Id. at 239; also Shelton v. Tucker, 364 U.S. 479, 488 (1960);
Konigsberg v. State Bar of California, 366 U.S. 36 (1961).

The circuit courts of appeals have consistently followed this
Court’s lead in determining the constitutionality of government hiring
regulations on the basis of the challenged regulations’ rational
relationship to job functions or performance. See, e.g., Grusendorf v.
City of Oklahoma City, 816 F.2d 539, 543 (10th Cir. 1987); DeWeese v.
Town of Palm Beach, 812 F.2d 1365, 1367 (11th Cir. 1987) (ordinance
preventing shirtless jogging by males not related to any legitimate
interest of town); Dilulio v. Board of Fire and Police Commissioners, 682
F.2d 666, 668-70 (7th Cir.), cert. denied, 459 U.S. 1038 (1982) (police
promotion examination rationally related to job functions and
candidates’ qualifications); Hander v. San Jacinto Junior College, 519
F.2d 273, 277 (Sth Cir.), clarified on rehearing granted, 522 F.2d 204 (Sth
Cir. 1975) (college faculty grooming code prohibiting beards not
rationally related to valid educational purpose); Lansdale v. Tyler Junior
College, 470 F.2d 659 (Sth Cir. 1972), cert. denied, 411 U.S. 986 (1973)
(hair length rule for college students not rationally related to legitimate
educational aims).

Like the various hiring regulations addressed by the courts in
the cases cited above, a hiring concerning off-duty smoking must be
rationally related to a particular government job’s functions in order to
comport with due process. The only reported federal decision to
address such a restriction is the Tenth Circuit’s decision In Grusendorf
v. City of Oklahoma City. In Grusendorf, a fire department rule
prohibited firefighter trainees from smoking on or off duty for one year
after hiring, and required new hirees to sign an agreement to that effect
as a condition of employment. 816 F.2d at 540. The court clearly
recognized that the rule implicated protected liberty interests, stating:

8

It can hardly be disputed that the Oklahoma City Fire
Department’s non-smoking regulation infringes upon the
liberty and privacy of the firefighter trainees. The,
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.

While the Tenth Circuit acknowledged that the liberty and
privacy interests at issue in the case of a no-smoking rule may not rise
to the level of a fundamental right, the Court also emphasized that even
non-fundamental rights are entitled to meaningful protection against
governmental infringement. The court stated:

Nor are we inclined to accept the defendants’
contention that, since cigarette smoking has not been
recognized as a fundamental right, no balancing test nor
rationale of any kind whatsoever is needed to justify the
restriction. This reasoning would seem to suggest that
the state can, arbitrarily and for no reason, condition
employment upon an agreement to refrain from a nearly
limitless number of innocent, private and personal
activities. We would be reluctant to go this far even if
the law would tolerate such a venture.

Id. at 542.

In Grusendorf the court of appeals upheld the no-smoking rule,
but only upon finding a "rational connection between the non-smoking
regulation and the promotion of the health and safety of the firefighter
trainees." The court noted that good health and physical conditioning
are essential requirements for firefighters who "are frequently exposed
to smoke inhalation,” where “it might reasonably be feared that smoking
increases this health risk." Jd. at 543.

In contrast to the restriction on off-duty smoking upheld in

9

Grusendorf, the City of North Miami’s concedes that its no-smoking
hiring regulation has no relationship to the qualifications of the
applicants or the requirements of the jobs sought. The City of North
Miami’s regulation violates due process because it applies to ail
applicants for all government jobs, for reasons unrelated to their fitness
or qualifications for any particular job.

IL The Florida Supreme Court’s Ruling that the City’s
Asserted Interest in Reducing Costs Resulting from
Smoking-Related Ilinesses Constitutes a "Rational
Basis” for a Hiring Regulation that is Unrelated to Jeb
Functions or Performance and that Intrudes into the
Private, Lawful, Off-Duty Conduct of Job Applicants
Presents an Impertant Question of Federal Law Which
Has Not Been, but Should Be, Decided by this Court.

In Watson v. City of Memphis, 373 U.S. 526 (1963), the Court
held, "[I]}t is obvious that vindication of conceded constitutional rights
cannot be made dependent upon any theory that it is less expensive to
deny than to-afford them.” Id. at 537; also Liddell v. State, 731 F.2d
1294, 1308 (8th Cir.), cert. denied, 469 U.S. 816 (1984); see Reed v. Reed,
404 U.S. 71, 76 (1971). In this case, however, the City of North Miami
quite explicitly asserts its desire to save costs as the sole justification for
denying all employment opportunities to individuals who have used
tobacco products within one year of applying for a City job.

This Court has never to date expressly addressed the question
of whether the interest in saving costs alone can constitute a rational
justification for a government hiring restriction which intrudes on a
non-fundamental liberty interest, where such intrusion is not otherwise
rationally related to job functions or performance.

This case thus presents one of the most important issues in
employment law today--the extent to which government employers can
regulate, in the name of cost-saving, the private off-duty lives of their
employees and job applicants.

Whether the Florida Supreme Court intended such a result or

not, its opinion in this case would legitimize governmental intrusion into
and regulation of such disparate areas of private life as: body weight,

10

———

diet, finances, hobbies, and personal morality, all based solely on the
government’s asserted interest in saving money.

The real danger presented by this case is that the Florida
Supreme Court’s decision will open up virtually every aspect of a
person’s private life to intrusive governmental regulation in the
supposed interest of cost-cutting. The effect of that decision may be
that, unless the off-duty, pre-hiring or otherwise private activity is one
previously recognized as a fundamental right, such as reproductive,
religious and family matters, then it can be regulated by the state if it
bears any conceivable relationship, not to the government employer’s
interest in determining and maintaining job functions and performance,
but to its interest in lessening, by any amount no matter how small,
government costs.

Thus, using the same rationale as that approved by the Florida
Supreme Court in this case, a government employer could regulate
when its employees or prospective employees go to bed at night, how
much beer they drink on the weekends, what they eat for breakfast,
what kind of cars they drive, where they take their vacations and what
hobbies they engage in, all in the interest of making sure that those
employees or applicants meet some ideal of health and fitness and thus
cost the government less money to insure. This is the real danger of
the Florida Supreme Court’s decision, and this is the issue which
requires consideration by this Court.

4 See Maltby & Dushman, Whose Life Is It Anyway--
Employer Control of Off-Duty Behavior, 13 St. Louis Pub. L. Rev.
645 (1994); Smith & Francis, Beyond the Company Town: Employees’
Right to Privacy Regarding Off-Duty Conduct, 158 N.J. Lawyer 13
(Jan. 1994); Hill & Delacenserie, Procrustean Beds and Draconian
Choices: Lifestyle Regulations and Officious Intermeddlers--Bosses,
Workers, Courts, and Labor Arbitrators, 57 Mo. L. Rev. 51 (1992);
Kramer & Calder, The Emergence of Employees’ Privacy Rights:
Smoking and the Workplace, 8 The Labor Lawyer 313, 321-22
(1992).

11

CONCLUSION

On the basis of the arguments and authorities set forth above,
the petitioner Arlene Kurtz requests that the Court grant certiorari to
consider the important constitutional questions raised by this case.

Respectfully submitted,

PAMELA A. CHAMBERLIN
Counsel of Record

Mitrani, Rynor & Gallegos, P.A.
SunBank International Center
Suite 2200

One Southeast Third Avenue
Miami, Florida 33131
(305)358-0050

Cooperating Attorney for the
American Civil Liberties Union
Foundation of Florida, Inc.

12

APPENDIX
ADMINISTRATIVE REGULATION 1-46

CITY OF NORTH MIAMI
ADMINISTRATIVE REGULATIONS

Lawrence J. Casey
City Manager

Administrative Regulation 1-46
Approved_/s/_ Date 03-09-90

ALL DEPARTMENTS

TOBACCO OR TOBACCO PRODUCTS ABSTENTION AS PRE-
EMPLOYMENT REQUIREMENT

OBJECTIVE

To reduce the liability exposure to the City of North Miami
recognizing that:

1) the Surgeon General of the United States has declared
that use of tobacco or tobacco products is a hazard to
an individual’s health; and

2) an employee’s poor health, due to the continued use of
tobacco or tobacco products, increases the loss
experience of the group insurance plans and group life
insurance plans; and

3) increases in loss experience result in increases in
premium cost for insurance plans; and
4) increases in premium costs for employees are borne by

the General Fund and subsequently by the taxpayers of
the City of North Miami.

To reduce the amount of lost productivity time due to absenteeism and
on-the-job time lost to the City of North Miami recognizing that:

1) an employee’s poor health, due to the continued use of
tobacco or tobacco products, increases the amount of

A-1

lost work days and limited activity and thus reduces an
employee’s productivity; and

2) decreases in employee productivity result in the
decrease in efficiency of the City government; and

3) decreased efficiency is not an effective use of taxpayer’s
dollars.
RESPONSIBILITIES

The Personnel Director is responsible for monitoring the compliance of
the provisions of this Administrative Regulation.

PROCEDURES

All applicants must be a nonuser of tobacco or tobacco producss fur at
least one year immediately preceding application, as evidence by the
sworn affidavit of the application.

DUE PROCESS CLAUSE, U.S. CONST. AMEND. 14

"No State shall . . . deprive any person of life, liberty, or
property, without due process of law."

TITLE 42 UNITED STATES CODE SECTION 1983

"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia."

A-3

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
IN THE CIRCUIT COURT FOR THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR
DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION -
CASE NO. 91-3165 (04)
FLA. BAR NO. 444006
ARLENE KURTZ,
Plaintiff,

V.

THE CITY OF NORTH MIAMI,

FLORIDA,
Defendant.
/
co FOR I TO EF

The plaintiff, Arlene Kurtz, sues the defendant, the City of
North Miami, and says:

1. This is an action for injunctive and declaratory relief
pursuant to title 42 United States Code section 1983 and Florida
Statutes section 86.011.

y I The plaintiff, Arlene Kurtz (hereinafter "Kurtz"), is a
resident of the City of North Miami, Dade County, Florida.

3. The defendant, the City of North Miami, Florida
(hereinafter "the City"), is a Florida municipal corporation.

ONS APPLIC TO OUNTS

4. On or about December, 1989, Kurtz took and passed a
written examination required for all prospective applicants for

A-4

rere tiatiaaiiemaeaiiiameatiiaiil

employment by the City of North Miami.

» On or about May 1990, the City notified Kurtz that there
was an opening for a clerk/typist, and made an appointment with Kurtz
to interview her for that position.

6. When Kurtz arrived at the interview on or about May
31, 1990, she was informed by the interviewer that in order to be hired
for any job with the City of North Miami, Kurtz would be required to
sign an affidavit stating that she did not currently smoke cigarettes or
used any other tobacco products and that she had not smoked cigarettes
or used any other tobacco products for the past twelve months.

2 Kurtz told the interviewer that she could not truthfully
sign such an affidavit. The interviewer then told Kurtz that there was
no point in proceeding with the interview, and terminated the interview.

8. Following that terminated interview, Kurtz has not been
notified of or considered for any position with the City of North Miami.

9. Aside from her refusal to sign the affidavit required by
the City of North Miami, Kurtz was and is qualified for the position of
clerk/typist.

10. The City of North Miami has officially adopted a policy
requiring all applicants for employment with the City to execute
affidavits stating that they do not use tobacco products and have not
used tobacco products for the past twelve months (hereinafter referred
to as "the policy"). Any person who refuses to sign such an affidavit will
not be considered for employment by the City in any capacity or

position.

11. The City’s policy against hiring smokers and persons who
have smoked within the past twelve months applies to all job positions,
and prohibits the hiring of such persons, regardless of whether the
applicants are otherwise qualified for any particular jobs.

12. The City’s stated purpose in adopting this policy is to
reduce the City’s health insurance costs and is unrelated to the City’s
legitimate interest in ensuring that applicants for employment are
qualified to carry out their duties and responsibilities.

A-5

13. The City’s stated cost-saving rationale is not a legitimate
justification for denial of prospective employees’ constitutional rights.

14. The City’s policy wrongfully conditions applicants’
eligibility for City employment upon their agreeing to relinquish their
constitutional privacy and liberty interests in lawful, off-duty conduct
unrelated to their job qualifications and performance.

15. By raising an irrebuttable presumption that persons who
smoke off-duty or who have smoked within the past twelve months are
unqualified for employment by the City in any capacity, the City’s policy
violates the excluded applicants’ rights to due process of law.

16. The City’s policy violates due process by barring off-duty
smokers and persons who have smoked within the past twelve months
from all City employment, and not only from those positions as to
which past or present smoking activity is or may be a relevant and
rational hiring criterion.

ss The requirement of disclosure by applicants of off-duty
smoking activity unrelated to job performance is a violation of due
process of law.

18. The City’s policy is violative of equal protection because
it arbitrarily and on the basis of impermissible criteria distinguishes job
applicants who smoke off-duty or who have smoked within the past
twelve months from job applicants and present City employees who do
not smoke or have not smoked within the past twelve months.

19. The challenged policy violates the right of persons to be
free from governmental intrusion into their private lives.

COUNT I--INJUNCTION

20. Paragraphs 1 through 19 are incorporated herein by
reference.

21. +The City’s policy the Fourteenth Amendment to the
Constitution of the United States, which provides in pertinent part,
"[N]or shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its

A-6

jurisdiction the equai protection of the laws."

22. By implementation and enforcement of its policy, the
City has deprived Kurtz of rights secured by the above-cited
constitutional provisions.

23. Pursuant to title 42 United States Code section 1983,
Kurtz requires and is entitled to an injunction against the City’s
enforcement of its policy.

WHEREFORE, the plaintiff Arlene Kurtz demands judgment
against the City enjoining it from the continued enforcement of the
challenged policy, and for attorneys’ fees pursuant to title 42 United
States Code section 1988, and for costs of this action.

COUNT II--DECLARATORY RELIEF

24. Paragraphs 1 through 19 are incorporated herein by
reference.

25. The City’s policy violates article I, section 2 of the
Florida Constitution, which provides in pertinent part, "All natural
persons are equal before the law and have inalienable rights, among
which are the right to enjoy and defend life and liberty, to pursue
happiness, [and] to be rewarded for industry... .”

26. The City’s policy violates article I, section 9 of the
Florida Constitution, which provides in pertinent part, " No person shall
be deprived of life, liberty, or property without due process of law .. .”

27. The City’s policy violates article I, section 23 of the
Florida Constitution, which provides in pertinent part, "Every natural
person has the right to be let alone and free from governmental
intrusion into his private life... ."

28. Kurtz requires and is entitled to a declaration by this
Court that the City’s policy, as a result of which she was denied the
opportunity for fair consideration for public employment, violates the
above-cited provisions of the Florida Constitution.

WHEREFORE, the plaintiff Arlene Kurtz demands judgment

A-7

declaring the City’s policy unconstitutional under the Florida
Constitution, for such other relief as is necessary and proper to effect
the Court’s judgment, and for costs of this action.

Dated: January 22, 1991

A-8

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

IN THE CIRCUIT COURT FOR THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR
DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 91-3165 (04)

ARLENE KURTZ,
Plaintiff,
v.

THE CITY OF NORTH MIAMI,
FLORIDA,

Defendant.
/

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

The plaintiff Arlene Kurtz moves the Court, pursuant to rule
1.510 of the Florida Rules of Civil Procedure, for entry of summary
judgment in her favor, on the grounds set forth herein.

I. INTRODUCTION

The plaintiff seeks injunctive and declaratory relief against a
policy of the defendant City of North Miami, which policy requires all
job applicants to execute affidavits stating that they do not smoke or
use tobacco products and have not done so within the preceding twelve
months.

The plaintiff claims that the policy violates the United States
and Florida Constitutions, and seeks an injunction pursuant to 42
United States Code section 1983 and declaratory relief pursuant to
Florida Statutes section 86.011.

There is no genuine issue as to any material fact, and the
plaintiff is entitled to a judgment as a matter of law. The plaintiff

A-9

therefore requests that the Court enter summary judgment in her favor,
enjoining the City from enforcing its no-smoking hiring policy and
declaring that policy unconstitutional under the U.S. and Florida
Constitutions.

II. STATEMENT OF MATERIAL FACTS AS TO WHICH NO
GENUINE ISSUE EXISTS

1. . The City has officially adopted a policy requiring all
applicants for employment with the City to execute affidavits stating
that they do not use tobacco products and have not used tobacco
products for the past twelve months. (Complaint J 10; Answer {| 10;
Def’s Response to Pitf’s Req. for Admissions {| 1).

2. Any person who refuses to sign such an affidavit will not
be considered for employment by the City in any capacity or position.
(Complaint 4 10; Answer | 10; Def’s Response to Pitfs Req. for
Admissions J 2).

3. The effect of the policy is such that, in order even to be
considered for any City job, a prospective applicant must forbear to
smoke or use tobacco for a period of one year prior to the date of hire.

(Def’s Answers to Plitf’s Interrogs. 7 1).

4, While the City’s asserted justification for its policy is the
reduction of health care costs by preventing smoking related illnesses
among its employees (Answer {J 32), the City does not bar its present
employees from smoking and does not bar new employees, once hired,
from beginning to smoke. (Def’s Answers to Pitf’s Interrogs. {| 1).

5. The City’s policy against hiring smokers and persons who
have smoked within the past twelve months applies to all job positions,
and prohibits the hiring of such persons, regardless of whether the
persons are otherwise qualified for any particular jobs. (Def’s Response

to Pitf’s Req. for Admissions {| 3).
6. Persons already employed by the City prior to the
adoption of the policy were not required to execute affidavits regarding

their present or past smoking or tobacco use as a condition of their
continued employment by the City. (Def’s Response to Pitf’s Req. for

A-10

|

Admissions {| 4).

ve Persons already employed by the City prior to the
adoption of the policy were not required to quit smoking or using
tobacco products as a condition of their continued employment by the
City. (Def’s Response to Pitf’s Req. for Admissions {| 5).

8. City job applicants who are smokers or tobacco users are
not individually screened or examined to determine their actual health
conditions or medical histories. (Def’s Response to Pitfs Req. for
Admissions | 7).

9. The City does not offer job applicants who are smokers
or tobacco users the option of waiving insurance coverage for smoking
related illnesses as a condition of employment. (Def’s Response to
Pitf's Req. for Admissions {| 9).

10. The City does not offer job applicants who are smokers
or tobacco users the option of paying any increased insurance premiums
or costs resulting from their smoking or tobacco use as a condition of
employment. (Def’s Response to Plitf’s Req. for Admissions §] 10).

11. In December 1989, the plaintiff Arlene Kurtz took and
passed a written examination required for all prospective applicants for
employment by the City. (Complaint 4 4; Answer {| 4; Affid. of Arlene
Kurtz ] 2).

12. The City’s policy against hiring smokers and persons who
have smoked within the past twelve months applies to all job positions,
and prohibits the hiring of such persons, regardless of whether the
applicants are otherwise qualified for any particular jobs. (Complaint
1 11; Answer 7 11).

13. In May 1990, the City notified Kurtz that there was an
opening for a clerk-typist, and made an appointment to interview her
for that position. (Complaint 4 5; Answer 5; Affid. of Arlene Kurtz
7 .

14. When Kurtz arrived for the interview on May 31, 1990,
she was informed by the interviewer that in order to be hired for any

A-11

job with the City, she would have to sign an affidavit stating that she
did not smoke or use tobacco products and that she had not done so
within the past twelve months. (Complaint 9 6; Answer {| 6; Affid. of
Arlene Kurtz 7 4).

15. Kurtz told the interviewer that she could not truthfully

sign such an affidavit, and the interview was terminated. (Complaint 7]
7; Answer {J 38; Affid. of Arlene Kurtz 4 5).

16. Since that terminated interview, Kurtz has not been
notified of any other job openings with the City of North Miami.
(Affid. of Arlene Kurtz {| 9).

17. Kurtz was in May 1990 and is now qualified for the job
of clerk-typist. (Affid. of Arlene Kurtz 4 7).

18. Kurtz would be willing to abide by a reasonable
restriction on smoking while on duty or where smoking would affect her
fellow employees or others, as a condition of employment by the City.
(Affid. of Arlene Kurtz { 8).

Ill. THE PLAINTIFF IS ENTITLED TO JUDGMENT AS A

MATTER OF LAW
i. Privacy

The City’s no-smoking hiring policy constitutes governmental
intrusion into the private lives of citizens for the purpose of regulating
lawful, off-duty conduct unrelated to any legitimate need of
government. For citizens, such as the plaintiff, who refuse to submit to
this indirect regulation, the penalty is a denial of all opportunity to seek
or obtain employment in City government.

Article I, section 23, of the Florida Constitution provides, "Every
natural person has the right to be let alone and free from governmental
intrusion into his private life except as otherwise provided herein." This
explicit constitutional right of privacy is far broader than that provided
by the general due process language of the U.S. Constitution. In re
T.W., 551 So.2d 1186, 1192 & n.5 (Fla. 1989); Shaktman v. State, 553
So.2d 148, 151 n.9 (Fla. 1989); Winfield v. Division of Pari-Mutuel

A-12

Wagering, 477 So.2d 544 (Fla. 1985). In cases involving violations of
the privacy guarantee, the government has the burden of demonstrating
a “compelling state interest" justifying the intrusion, and that the "least
intrusive means" have been used to accomplish that goal. Shaktman,
553 So.2d at 151-52; In re T.W., 551 So.2d at 1192; Winfield, 477 So.2d
at 547.

The decision whether or not to engage in the completely legal
use of tobacco products in one’s own home and on one’s own time is
a matter which should be left to the individual. Before the City is
allowed to condition employment on the relinquishment of personal
autonomy by its citizens, it must demonstrate a compelling state interest
justifying that action. The City’s asserted interest in reducing its
medical costs is not such a "compelling" interest as to justify the
challenged hiring policy.

Moreover, even if the City’s interest were deemed to be
"compelling," the City has clearly not employed the "least intrusive
means" of furthering that interest. The City’s aim of reducing health
care costs could be achieved, for example, by limiting insurance benefits
for smoking-related illnesses or by requiring that higher premiums be
paid by employees with particular health risks. The City admits that it
does not give smoking employees these options. Nor does the City
allow smokers to waive health insurance coverage entirely.

That the means chosen are not the least intrusive is obvious
when it is noted that the City’s policy requires all prospective job
applicants to refrain from smoking for a year, in order even to be
considered for a City job. Many if not most of those applicants will
probably not ever be hired, but they are nonetheless constrained by the
policy to give up this lawful conduct in order to have even an
opportunity for consideration. Clearly, the City can have no interest in
precluding smoking by persons it will not ultimately hire. That the City
presumes to dictate such persons’ private lives demonstrates that its
policy is far from the "least intrusive" that could be devised to obtain its
asserted goal of reducing its employees health care costs.

In short, the City could achieve its goal by any number of
approaches tailored to the actual health risks and costs presented by
individual employees, without resorting to intrusive regulation of
employees’ private, lawful, off-duty conduct. The City has chosen,

A-13

however, to use instead the most intrusive means available--requiring
absolute abstinence for a year prior to even being considered for a City
job.

The City asserts in its answer that the plaintiff, when she applied
for a job with the City, executed a waiver of confidentiality and
permission for a background investigation. The City argues that the
plaintiff thereby "waived" her constitutional privacy interest. Even if the
City’s factual allegations are conceded for purposes of this motion, the
City’s legal argument is flawed. If the City’s employment
application requires a surrender of one’s constitutional right of privacy,
then that requirement is itself clearly unconstitutional. See McDonnell
v. Hunter, 809 F.2d 1302, 1310 (8th Cir. 1987) (state could not require
applicants to give advance consent to unreasonable searches as
condition of employment); also Keyishian v. Board of Regents, 385 U.S.
589, 17 L.Ed.2d 629 (1967).

Moreover, the City’s position mischaracterizes the purpose and
scope of the constitutional privacy guarantee. The right of privacy is
not only a right of secrecy or confidentiality. The constitutional right
of privacy is the right "to be let alone" and extends to many areas where
the individual’s interest is not in secrecy but in personal autonomy.
See, Winfield, 477 So.2d at 546; In re T.W., 551 So.2d at 1192; In re
Guardianship of Browning, 568 So.2d 4, 9-12 (Fla. 1990).

The City’s policy clearly violates the Florida Constitution’s
guarantee of privacy as set forth in article I, section 23, and the plaintiff
requests that the Court enter summary judgment so holding and
granting her injunctive and declaratory relief as requested in the
complaint.

2. Substantive Due Process

The City’s ban on hiring smokers violates Kurtz’s right to
substantive due process by denying her government employment
opportunities on a basis unrelated to the functions of the job sought or
to her ability and qualifications to carry out those job functions.

In the context of governmental hiring decisions, substantive due

process requires that any standards applied in making such decisions
have a rational connection with the applicant’s fitness or capacity to

A-14

perform the job sought. Attaching unreasonable and arbitrary
requirements to job eligibility violates substantive due process.

Grusendorf v. City of Oklahoma City, 816 F.2d 539, 542 (10th Cir.
1987).

There are many instances of employment restrictions being
struck down on the ground that they were not rationally related to the
actual job functions. In Lindquist v. City of Coral Gables, 323 F.Supp.
1161 (S.D. Fla. 1971) the district court, applying a rational basis
standard of review, held that a fire department rule prohibiting firemen
from wearing sideburns extending below their earlobes bore no
relationship to the proper functioning of the fire department, and
violated the plaintiffs substantive due process right to determine his
own personal appearance. Id. at 1163-64. In Hander v. San Jacinto
Junior College, 519 F.2d 273 (Sth Cir. 1975), the former Fifth Circuit
held that a college’s rule prohibiting male teachers from wearing long
hair was unconstitutional because the rule had no "relevance to
legitimate administrative or educational functions." Id. at 277.

Where a government seeks to restrict employment on the basis
of prior or off-duty conduct by job applicants, such restrictions must
also be rationally related to the on-duty requirements of the job.
Osterman v. Paulk, 387 F.Supp. 669, 670-71 (S.D. Fla. 1974).

In Osterman, the court held that a Civil Service standard
prohibiting the employment of anyone who had used marijuana during
the past six months was unconstitutional as applied to an applicant for
a clerk position, on the ground that there was no "rational nexus"
between the off-duty or prior conduct and the duties of the job in
question. Id.

The court noted that under Florida Statutes section 112.011,
prior criminal conduct, even a prior felony conviction, was no bar to
public employment unless the crime "directly relates" to the specific job
sought. Id. at 671. In relation to this, the court stated:

The anomaly of the City’s position is shown
when it is recognized that a prior conviction for an
unrelated felony could not bar the plaintiff's
employment while a single use of marijuana within the
previous six months (if established) renders her

A-15

ineligible.
Id.

In Andrews v. Drew Municipal Separate School District, 507
F.2d 611 (Sth Cir. 1975), cert. dismissed, 425 U.S. 559 (1976), the
former Fifth Circuit struck down a school district’s practice of refusing
employment to parents of illegitimate children, because the practice was

not rationally related to any legitimate educational goals of the schooi
district. Id: at 614-17.!

Restrictions on off-duty smoking must also be rationally related
toa particular job’s functions in order to pass constitutional muster, as
held in Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir.
1987). In that case, a fire department’s rule prohibited firefighter
trainees from smoking on or off duty for one year after hiring, and
required new hirees to sign an agreement to that effect as a condition
of employment. Id. at 540. The court clearly recognized that the rule
infringed upon protected liberty and privacy interest, stating:

It can hardly be disputed that the Oklahoma City Fire
Department's non-smoking regulation infringes upon the
liberty and privacy of the firefighter trainees. The
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.

] The court emphasized that it was invalidating the
practice using the rational relationship test, and never reached the
question of whether the practice also constituted discrimination on
the basis of sex, which would have required a higher standard of
review. Id. at 613, 614 & n.5.

A-16

——————

While the Tenth Circuit acknowledged that the liberty and
privacy interests at issue in the case of a no-smoking rule may not rise
to the level of a fundamental right, the Court also emphasized that even
non-fundamental rights are entitled to meaningful protection against
governmental infringement. The court stated:

Nor are we inclined to accept the defendants’
contention that, since cigarette smoking has not been
recognized as a fundamental right, no balancing test nor
rationale of any kind whatsoever is needed to justify the
restriction. This reasoning would seem to suggest that
the state can, arbitrarily and for no reason, condition
employment upon an agreement to refrain from a nearly
limitless number of innocent, private and personal
activities. We would be reluctant to go this far even if
the law would tolerate such a venture.

Id. at 542.

In Grusendorf the court upheld the no-smoking rule, but only
upon finding a "rational connection between the non-smoking regulation
and the promotion of the health and safety of the firefighter trainees."
The court noted that good health and physical conditioning are essential
requirements for firefighters who “are frequently exposed to smoke
inhalation," where "it might reasonably be feared that smoking increases
this health risk." Id. at 543.

In contrast to the restriction on off-duty smoking upheld in
Grusendorf, the City of North Miami’s no-smoking hiring policy
admittedly has no relationship to the qualifications of the applicant or
the requirements of the job sought. The City’s policy, in contrast,
violates substantive due process by denying applicants all opportunities
in government employment, for reasons unrelated to their fitness or
qualifications for any particular job.

The City concedes that its policy is unrelated to job
qualifications, but asserts that its goal of reducing health insurance costs
justifies the policy. Even if that objective were a legitimate goal of
government when it results in the turning-away of qualified applicants,
the no-smoking hiring rule is not a way of "rationally" achieving that
goal. If the policy were actually and rationally to serve the goal of

A-17

reducing the City’s health insurance and medical costs, it would focus
on its employees’ health and medical histories, rather than on the fact
that a job applicant engages or has engaged in one type of off-duty
conduct, smoking.

Moreover, if in fact the City’s policy was designed to reduce
smoking-related health costs among its employees, it would forbid
smoking by persons after, rather than before, they were hired. Here,
a person hoping to get a job with the City must give up smoking a year
in advance:in the mere hope of getting a City job, and only persons who
have done so are deemed worthy of employment by the municipality.
However, once employed, the City does not require that a person
continue to abstain from smoking. Also, those employed prior to the
adoption of the no-smoking hiring policy can continue their smoking
unabated, notwithstanding any additional health costs that may result.
Clearly, if the City’s real interest were in health costs, it would focus its
regulatory activity at its actual employees rather than on creating
artificial, irrational requirements for all job applicants.

Even if smoking were, in some cases, an indicant of potential
health problems and increased medical costs, the rational way of
addressing that issue would be in connection with the decision of
whether or under what terms to provide health insurance, not in the
decision of whether or not to hire in the first place. Refusing to hire
smokers at all is not a rational way to achieve the goal of controlling
health costs. Rather, the City could limit coverage for smoking related
illnesses or require smokers to pay higher insurance premiums.

The irrational effect of this policy is that the City would deny
employment even to a smoker who would not be covered under the
City’s group health plan, and who would thus cost the City nothing in
insurance costs. For example, some job applicants may not wish or
intend to join the City’s health plan, because they have coverage under
their spouses’ group plans. The City’s health-cost justification is clearly
specious as applied to these individuals, and yet the City’s no-smoking
policy would deny these individuals employment.

Moreover, the City has admitted that it will not permit smoking
employees to waive or pay an extra premium for their insurance

coverage in order to obviate or defray the supposed added health care
costs. In light of this admission, in particular, it is clear that the City’s

A-18

no-smoking hiring policy is not really or rationally aimed at curtailing
health costs. Rather, it is blatant discrimination against persons who
engage in a particular conduct of which the City government
disapproves.

Because the City’s policy has absolutely no relation to job
qualifications or functions, and no rational or logical relation to the
City’s interest in reducing insurance costs, it violates the plaintiffs right
to substantive due process guaranteed under the Florida and United
States Constitutions. U.S. Const. Amend. 14; Fla. Const. art. I, § 9.
The plaintiff therefore requests that the Court enter summary judgment
so holding, and granting her injunctive and declaratory relief as
requested in the complaint.

3. Procedural Due Process

The City deprived Kurtz of procedural due process by barring
her from all government employment opportunities based on the
irrebuttable presumption that hiring Kurtz would increase the City’s
self-insured medical expenses. The City admits that job applicants who
are smokers are not screened to determine their actual, individual
health status, and are thus given no opportunity to rebut the City’s
presumption regarding their likely insurance risk. Procedural due
process, however, requires that Kurtz be given some opportunity to
rebut the correctness of that presumption in her individual case.

While an applicant for employment ordinarily does not have
such a "property right" in the job applied for as to invoke the
protections of procedural due process, there are certain circumstances
in which a job applicant is entitled to procedural due process prior to
being denied employment. One such circumstance is where
governmental action not only denies an applicant a particular job, but
also forecloses the applicant from seeking all other employment by the
government.

In the case of Board of Regents v. Roth, 408 U.S. 564, 33
L.Ed.2d 548 (1972), the Court held that a non-tenured college teacher,

with no contractual or other “property” right to renewal of his annual
contract, was not entitled to a statement of reasons and a hearing prior
to the state’s non-renewal of his contract. Id. at 576-79, 33 L.Ed.2d at
560-62. The Court was careful to note however, that the plaintiff was

A-19

not foreclosed from seeking other employment within the state
university system, and stated that if that had been the case the outcome
would have been different. The Court stated:

[T}here is no suggestion that the State, in declining to
re-employ the respondent, imposed on him a stigma or
other disability that foreclosed his freedom to take
advantage of other employment opportunities. The
State, for example, did not invoke any regulations to bar
the respondent from all other public employment in
state universities. Had it done so, this, again, would be
a different case. For "[t]o be deprived not only of
present government employment but of future
opportunity for it certainly is no small injury... ." The
Court has held, for example, that a State, in regulating
eligibility for a type of professional employment, cannot
foreclose a range of opportunities "in a manner... that
contravene[s] . . . Due Process."

Id. at 573-74, 33 L.Ed.2d at 559 (citations omitted).

Procedural due process is denied when all opportunities for
government employment are denied to a person on the basis of "an
irrebuttable presumption, as to which the presumed fact does not
necessarily follow from the proven fact." Andrews v. Drew Municipal
Separate School Dist., 507 F.2d 611, 614 (Sth Cir. 1975), cert.
dismissed, 425 U.S. 559 (1976); see Fewquay v. Page, 682 F.Supp. 1195,
1998 (S.D. Fla. 1987), aff'd, 896 F.2d 558 (11th Cir. 1990).

In this case the plaintiff was not only denied the job of clerk-
typist with the City, but she is also barred from seeking any other
position within City government. The basis for the City’s policy is an
irrebuttable presumption that all smokers and all persons who have
smoked within the twelve months are unhealthy or are poor insurance
risks. The plaintiff is denied procedural due process because she has
no opportunity to rebut that presumption in her case and to establish
that, smoking notwithstanding, she is otherwise healthy, capable of
performing her job, and does not present an unacceptable insurance
risk.

The undisputed facts in this case demonstrate that the plaintiff

A-20

was denied procedural due process in violation of the 14th Amendment
to the United States Constitution and Article I, Section 9 of the Florida
Constitution, and the plaintiff requests that the Court enter judgment
in her favor so finding, and granting her injunctive and declaratory
relief.

4. Equal Protection

The City’s no-smoking policy creates two discriminatory
classification schemes in violation of the plaintiff's right to equal
protection--

(a) The first classification scheme creates two classes of job
applicants: one class consisting of applicants who use tobacco products
or have used them within the preceding twelve months; and another
class consisting of all other job applicants.

(b) The second classification scheme creates two classes of City
employees: one class consisting of newly hired employees who are
required as a condition of employment to refrain from using tobacco for
at least a year; and another class consisting of persons employed by the
City prior to the implementation of the policy and who are not required
to change or suspend their smoking conduct in any respect in order to
keep their City jobs.

The City’s asserted goal in creating these classification schemes
's to reduce its self-insured medical costs. Even conceding that
reduction of medical costs is a legitimate goal of the City, the issue
remains whether or not the classification schemes formulated by the

City rationally serve that goal. Bowman v. Town of Pennsauken, 709
F.Supp. 1329, 1338-39 (D.N.J. 1989).

As stated by the former Fifth Circuit Court of Appeals, "[T]he
issue is not simply whether the objective is itself legitimate, but rather
whether the . . . rule ’advances that objective in a manner consistent
with the Equal Protection Clause’." drews v. Dr unicipal
Separate School District, 507 F.2d 611, 614 (Sth Cir. 1975), cert.
dismissed, 425 U.S. 559 (1976) (citation omitted).

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a. Classification of job applicants

Classifying job applicants on the basis of smoking alone does
not rationally serve the City’s interest in reducing medical costs, and
therefore violates the Equal Protection Clause. |

The City places smokers in a category separate from all other
job applicants, on the asserted basis that smokers have potential health
problems and higher medical expenses. However, that category is
patently underinclusive, because there are many other types of
applicants besides smokers who may have more serious health problems
and incur medical expenses as high as or higher than smokers.

Smokers are not per se unhealthy, but the City’s classification
scheme bars even healthy smokers from employment, while it does not
bar others whose potential or actual health problems are just as great.
For example, persons with diabetes, cancer, or AIDS would not be
barred from employment by the City, even though the medical costs for
persons with those diseases would almost certainly be as high as or
higher than for a smoker or former smoker whose general health is
good. |

The City’s classification scheme for job applicants is also
underinclusive in that it would not bar employment of persons who
engage in other kinds of conduct that may result in high medical costs.
Automobile racers, IV drug users, and people who engage in high-risk
sexual activity all face the prospect of health problems as a consequence
of their prior or off-duty activities, but the only activity prohibited by
the City is the use of tobacco.

The case of an v. Town of Pennsauken, 709 F.Supp. 1329,
1338-39 (D.N.J. 1989), is analogous to the present case. In that case,
a town police department imposed restrictions on officers who wished
to moonlight as security guards, requiring employers of these off-duty
officers to indemnify the town and limiting the hourly wages officers
could make as security guards. 709 F.Supp. at 1332-33. Officers
pursuing off-duty work in all fields other than security positions were
not subject to the restrictions.

The court held that the restrictions created a classification
scheme in which officers doing off-duty security work were treated

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ile

differently than officers doing other types of off-duty work. Id. at 1338-
39. The court held that the appropriate standard of review was
whether or not the restrictions bore a rational relationship to a
legitimate state interest. Id. at 1339.

The court held that the township had a legitimate interest in
regulating its police department, and "such goals as reducing mental and
physical fatigue, limiting litigation and lessening liability insurance
expenses serve as legitimate government interests supporting
regulation." Id. The town’s asserted rationale for imposing the
restrictions only on moonlighting security guards was that the
restrictions would limit the town’s exposure to tort suits resulting from
the officers’ off-duty actions. Id.

The classification scheme set up by the town, however, did not
rationally serve those legitimate goals, because the classification subject
to the restrictions was “underinclusive." Id. at 1342. The court found
that officers doing many types of off-duty work, such as cabdrivers,
presented just as much or more of a liability risk to the township as did
officers engaged in security work. Therefore, applying the restrictions
only to security work was an irrational means of achieving the town’s
stated goal. Id. at 1343. The court stated:

The Township, by attempting to regulate the outside
employment of the police officers, has created
exceptions that run counter to and destroy the
underlying rationale for the Resolution. The
justification offered, by the Township as a legitimate
state interest is eroded, due to the exception that
officers engaged in non-security work are not subject to
the Resolution. . . .

A police officer working as a cabdriver who
witnesses an assault or theft and responds to it could
present a greater insurance risk to the Township than an
off-duty security officer. This illustration is only one
example, but it clearly demonstrates the problem of the
Resolution’s classification. Therefore, the Township’s
asserted interest in reducing insurance costs and liability

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crumbles under the actual application of the Resolution.

Id. at 1342-43. The district court in Bowman held that the restrictions
on off-duty security work were clearly arbitrary and unconstitutional on
their face. Id. at 1343.

Likewise in this case, the category of unhireables in which the
plaintiff is placed violates equal protection both because that class is
underinclusive and because it does not rationally relate to health or
likely insurance risk.

b. Classification of City employees

The City’s policy of requiring job applicants to give up smoking
for at least a year prior to consideration, while allowing present
employees to continue to smoke unabated and while allowing new
employees to begin smoking once hired, is even more patently
irrational. If smoking itself presents an unacceptable health risk, then
there is no logical or rational basis for permitting employees to
continue or begin to smoke while requiring job applicants to refrain for
a year.

This classification scheme, even if it did have the actual effect
of reducing overall medical costs for the City, is irrational because it is
blatantly arbitrary. For example, the City could undoubtedly slash its
overall medical expenses by only providing insurance coverage for
persons whose names begin with the letters A through M, while denying
coverage to N through Z. Such a plan, though it would certainly be an
effective cost-reduction strategy, would be unconstitutional because it
is arbitrary and capricious. In the same way, imposing an no-smoking
requirement on some employees solely on the basis of their dates of
hire is arbitrary and violative of equal protection for the persons
adversely affected.

The Tenth Circuit Grusendorf case similarly involved a smoking
ban on firefighter trainees but not on more senior firefighters. The
court noted that this irrational and discriminatory aspect of the rule
may have presented an equal protection violation, because good
respiratory health (the defendant’s asserted justification for the rule) is
equally important for all firefighters regardless of seniority. The
plaintiff in Grusendorf had not raised the equal protection issue,

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however, and the court refused to rule on it sua sponte. 816 F.2d at
543. The Bowman court cited this language of the Tenth Circuit in
Grusendorf. 709 F.Supp. at 1343.

In the present case, the application of the no-smoking policy to
new employees but not to existing employees completely undercuts and
negates the City’s purported cost-saving rationale. Even if smoking
indeed creates additional costs to the City, the policy of prohibiting
some but not all employees from smoking is a patently arbitrary and
capricious means of reducing those costs, and thus violates equal
protection.

The undisputed facts in this case demonstrate that the City’s
classification of job applicants and employees on the basis of off-duty
smoking violates equal protection. By being arbitrarily placed in a
category of “unhireable" persons, the plaintiff was denied equal
protection of the law, in violation of the 14th Amendment to the
United States Constitution and Article I, Section 2 of the Florida
Constitution. The plaintiff requests that the Court enter judgment in
her favor so finding, and granting her injunctive and declaratory relief.

IV. RELIEF REQUESTED

On the basis of the undisputed material facts in this case and
the legal arguments set forth above, the plaintiff requests that the Court
enter a declaratory judgment, authorized by Florida Statutes section
86.011, holding that the City’s policy violates the Florida Constitution
and the United States Constitution.

The plaintiff also requests that the Court enter an injunction
against the City’s enforcement and implementation of its off-duty
smoking policy. Issuance of such an injunction is authorized by Florida
Statutes section 86.061 as supplemental relief based on a declaratory
judgment. Insofar as the Court finds that the City’s policy violates the
United States Constitution, such an injunction is also authorized by title
42 United States Code section 1983.

The plaintiff also requests that the Court award her her
attorneys’ fees and costs incurred in this action, pursuant to 42 United
States Code section 1988.

OPINION OF THE TRIAL COURT
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT
IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION
CASE NO. 91-3165 (04)

ARLENE KURTZ,
Plaintiff,
vs.
THE CITY OF NORTH MIAMI, FLORIDA,

Defendant.
/

FINAL SUMMARY JUDGMENT

Facts

The City of North Miami is a municipality in Dade County,
Florida. Plaintiff, Arlene Kurtz, applied for a position as clerk typist
with the City. In December, 1989, Ms. Kurtz passed a written exam for
this position. Six months later, Kurtz was notified of an opening and,
along with others, was invited for an interview.

On March 9, 1990 North Miami City Manager, Lawrence C.
Casey, promulgated administrative regulation 1-46. (See attached
exhibit 1). [App. A-1]. One objective of this regulation was to reduce
the City’s liability exposure. The Manager recognized that the Surgeon
General of the United States has declared that the use of tobacco and
tobacco products is a health hazard. The Manager further recognized
that an employee’s poor health increases the loss experience of group
health and life insurance plans which result in increased premium costs
for employees which are directly borne by the City’s taxpayers. The
second objective of the regulation was to reduce lost productivity time
due to health related absenteeism. To meet these objectives the

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Manager decreed that future job applicants must be non-users of
tobacco and tobacco products for at least one year immediately
preceding application for employment and must verify same by affidavit.

The regulation addresses potential hirees. It neither regulates
nor attempts to regulate current employees or new non-smoking
employees once they begin employment.

Arlene Kurtz appeared for her interview on May 31, 1990, and
was advised that she was required to execute a non-smoking affidavit.
Kurtz told the interviewer that she was a smoker and could not
continue with the interview but she would not be considered for
employment until she was "smoke-free" for a one year period. The
interview was discontinued.

Kurtz contends she was and is qualified for the position of clerk

typist. She is willing to abide by any reasonable smoking restrictions
while on the job as a condition of employment.

Plaintiff contends that the City’s policy violates her rights as
protected by the Fourteenth Amendment of the United
Constitution, and Article I, Sections 2, 9, and 23 of
Constitution. The City responds that it’s policy has
relationship to the objectives of the regulation.

Article XIV, Section I of the United States Constitution
provides that no State shall deprive any person of life, liberty, or
property without due process of law nor shall any State deny any person

A-27

within its jurisdiction the equal protection of the laws.

Article I, Section 9 of the Florida Constitution reiterates the
Federal due process clause, while Article I, Section 2 of the Florida
Constitution sets forth the State’s equal protection provision.

There is no specific provision in the United States Constitution
addressing privacy; however, such a right is inherently recognized. In
1980, Florida adopted a privacy right as Article I, Section 23 of our
Constitution. It provides that every natural person has the right to be
let alone and be free from governmental intrusion into his private life.

The question presented then is whether the regulation
promulgated by the North Miami City Manager violates any of the
aforementioned constitutional provisions and Plaintiff's rights?

Does the City’s Policy Agdinst Hiring Tobacco
Users Violate a Job Applicant’s Substantive -
Due Process Ri Prescribed by the

United States Constitution?

The first issue to address is whether the United States
Constitution considers the right to use tobacco and tobacco products as
a fundamental privacy or-liberty right? In Carey v. Population Services
Int., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the Supreme
Court discussed fundamental privacy freedoms and enunciated that
freedoms émbracing personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing and
education would be considered fundamental. Smoking was not
mentioned.

In Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir.
1987), a fire fighter trainee challenged the constitutionality of a city
regulation prohibiting smoking on and off duty for a period of one year
after commencing employment as a fire fighter. The Court, in
addressing the issue of fundamental rights, was not willing to state that
smoking, under this regulation, was fundamental and protected.

Plaintiff cites Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47
L.Ed.2d 708 (1976), a case involving a regulation governing hair

A-28

grooming for male police officers, in support of her position. While the
Supreme Court utilized a rational relationship test in reaching its
conclusion, it was not willing to conclude that the regulation affected a
fundamental right. Kelley is not supportive of Plaintiff's position.

In Laird v. State, 342 So.2d 962 (Fla. 1977), the only Florida
case addressing smoking as a fundamental right, the Supreme Court
specifically found there is no fundamental right to smoke marijuana
even in the privacy of one’s home. The difference, of course, is that
Laird addresses an illegal item - marijuana - while in the instant case,
all tobacco products are involved. Laird offers no assistance in
analyzing the question.

Two cases commonly cited in support of one’s right to work in
a chosen area as being a fundamental right are Hampton v.Mow Sun
Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) and Schware
v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232,
77 S.Ct. 752, 1 L.Ed.2d 796 (1957). While these cases relate to
employment rights, more specifically, they address considerations of
aliens in Hampton and free speech in Schware as affecting one’s
employment right. The cases do not consider the issue of employment
itself as a fundamental right affected by substantive due process.

This Court concludes that the United States Constitution does
not recognize the right to smoke or the right to pursue a chosen
occupation as a fundamental right enjoyed by the citizens of this
country. Since no fundamental right is involved, the City is not
required to show a compelling state interest buy must only demonstrate
a rational relationship between the regulation and that which it attempts
to accomplish.

The next issue to consider then is whether there is a rational
relationship between the tobacco regulation and its objective. Also,
does the objective encompass a legitimate governmental interest?

Plaintiff urges this Court to narrowly interpret the rational
relationship test. She argues that the dictates of Osterman v. Paulk, 387
F.Supp. 669 (S.D. Fla. 1974) should be applied. The City of Miami
Civil Service Board had adopted a regulation requiring job applicants
to take a polygraph exam regarding past marijuana use. The Court
rejected this regulation finding there was no rational nexus between any

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off-duty or prior conduct and the duties of the job in question.

In Dilulio v. d

Northlake, 682 F.2d 666 (7th Cir. 1982), the Seventh Circuit held that
there must be a rational connection between an applicant’s fitness or
capacity to serve in the job sought and the standards being applied. In
Dilulio, a claim was made that a promotional exam was arbitrary,
capricious and discriminatory and the questions on the exam were not
related to any legitimate promotional scheme. The Court recognized
that unreasonable and arbitrary requirements violate constitutional due
process and stated there can be no arbitrary deprivation by the
government of a person’s liberty to engage in any occupation. The
Court went on to hold, however, that a governmental body’s articulated
reasons for the questions showed a rational connection to the job
sought and denied the applicant’s challenge.

Diaz v. U.S. Postal Service, 853 F.2d 5 (ist Cir. 1988), is also on
point. It reiterates the test this Court should apply. Diaz broadly

defines the term "relationship" and places the burden of showing there
is no rational relationship on the applicant. The applicant must
shoulder the burden of showing there is no rational relation between
the regulation and any legitimate governmental objective. If the
applicant cannot make such a showing, her challenge fails. Again, the
burden is not on the governmental authority to establish a genuine
public need for the specific regulation but rather on the applicant. See

also Kelley v. Johnson, supra.

In the case sub judice, the applicant has failed to carry her |
burden and demonstrate the absence of a rational connection between
the regulation and the job. The evidence presented reflects that the
objective sought by the governmental body and the method utilized are

proper. |

The last question relating to the substantive due process issue )
is whether the ends of the regulation address a legitimate governmental |
interest.

The item sought to be regulated herein, employment and the
use of tobacco products by potential hirees, is directed to the express

desire by the City Manager to reduce insurance costs to the City and
ultimately to its citizens through taxes. This Court finds that the

A-30

interest addressed by the City Manager is a legitimate governmental

interest. See Bowman v. Township of Pennsauken, 709 F.Supp. 1329
(D.N.J. 1989).

Based on the foregoing, this Court concludes that the policy
adopted by the North Miami City Manager does not violate a job
applicant’s substantive due process rights.

In order to determine whether procedural due process
requirements apply, the Court must look first to the nature of the
interest at stake. It must then look to see if that interest is within the
Fourteenth Amendment’s protection of liberty and property. Board of

v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972).

To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have a
legitimate claim of entitlement to it. Board of Regents, supra. In the
instant case there is o statutorily created entitlement but merely a desire
for employment. Accordingly, no property right is affected.

We must next decide if there is a liberty due process right to be
considered for a particular job. The simple fact that certain procedures
are made applicable does not, in and of itself, mean that these
procedures acquire constitutional dimension. Slotnick v. Staviskey, 560
F.2d 31 (ist Cir. 1977). If the procedures take on a substantive
character, constitutional guarantees may attach. If the procedures
merely regulate the employment but do not permanently deprive
someone of same, no liberty interest is involved and procedural due

process rights are not affected. Cf. Vruno v. Schwarzwalder, 600 F.2d
124 (8th Cir. 1979).

Plaintiff relies on the cases of Fewquay v. Page, 682 F.Supp.

1195 (S.D. Fla. 1987), and Andrews v. Drew Municipal Separate School
District, 507 F.2d 611 (Sth Cir. 1975) to support the position that her

A-31

procedural due process rights have been violated. The distinction
between Fewquay and Andrews and the instant case is clear. The
individuals in those cases were permanently deprived of a right to
employment due to conditions they could never overcome. In the case
sub judice, Plaintiff has the absolute ability to control the condition that
makes her ineligible for employment. The procedures in the instant
case merely regulate and do not permanently deprive Plaintiff of the
ability to be employed. Therefore, this Court concludes that since no
property or liberty interest is involved, Plaintiff's procedural due process
rights have not been affected.

ITI.

Are Plaintiff's Equal Protection Rights
Violated Under Either the United States
Or Florida Constitutions?

Plaintiff argues that the City’s "tobacco-in-hiring” policy creates
two distinct classes thereby violating the equal protection provisions of
both the United States and Florida Constitutions. Plaintiff's position
is without merit.

The equal protection clause of the Fourteenth Amendment does
not require that a state choose between attacking every aspect of a
problem or not attacking the problem at all. It is enough that the
state’s action be rationally based and free from invidious discrimination.
Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491
(1970).

In State v. Peters, 534 So.2d 760 (Fla. 3rd D.C.A. 1988), a case
involving a pit bull ordinance, an argument was made that all dog
owners were not being treated equally in violation of constitutional
guarantees. It is well established that a law is not constitutionally
defective simply because it contains classifications which are
underinclusive. A governmental entity is not bound to deal alike with
all classes or to strike at all evils at the same time or in the same

manner. Dandridge, supra.

Since the City’s policy only regulates applicants for employment
as it concerns their use of tobacco products, plaintiff would be hard
pressed to contend the class is overinclusive. She may contend it is
underinclusive; however, her argument that such a class violates equal

A-32

protection is erroneous. Plaintiffs equal protection rights have not
been violated. The City’s stated rationale for treating tobacco users
differently is valid.

Every natural person has the right to be let alone and free from
governmental intrusion into his private life. This constitutional
provision guaranteeing one’s right to privacy was not intended to
provide an absolute guarantee against all governmental intrusion into
the private lives of individuals. i

Applicant, 443 So.2d 71 (Fla. 1983); Stall v. State, 570 So.2d 257 (Fla.
1990).

The right to privacy is a fundamental right - one which demands
application of a compelling state interest standard. This test places the
burden on the state to justify any intrusion on privacy. This burden can
be met by demonstrating that the challenged provision serves a
compelling state interest and accomplishes its goal through the use of
the least intrusive means. Wi v._Divisi i-
Wagering, 477 So.2d 544 (Fla. 1985). However, before the right to
privacy attaches and the compelling state interest test need be applied,
there must be a reasonable expectation of privacy. State v. Long, 544
So.2d 219 (Fla. 2nd D.C.A. 1989); Shaktman v. State, 553 So.2d 148
(Fla. 1989).

Plaintiff's analysis of this issue frames a question very narrow in
scope. She argues she has a right to smoke in her own home. This
Court agrees. So long as she does not smoke marijuana or any other
illegal substance, she does. Laird, supra.

The issue presented by Plaintiff, however, is not the one that
must be addressed. The question is whether a governmental entity may
regulate employment. This question is not answered by resort to one’s
right to privacy. There is not expectation of privacy in employment.
Accordingly, this Court rejects Plaintiff's reliance on Article I, Section
23 of the Florida Constitution.

A-33

V.

Does the Florida Clean Indoor Air Act
Preempt Municipalities From Enacting
Rules ing S ing?

While the Florida Clean Indoor Air Act regulates smoking and
preempts this area to the state, the regulation as adopted by the City
does not interfere with this Act. This Court, after analysis, concludes
that the Clean Indoor Air Act is inapplicable to the instant case.

VI.

The Court has reviewed the rest of the issues raised by the
parties and concludes that none need be specifically addressed. With
due respect to both parties, no merit exists with these issues.

Conclusion

Based on the foregoing analysis of the issues presented, this
Court concludes that the regulation adopted by the North Miami City
Manager was a proper regulation adopted for a valid purpose. The
regulation does not violate any provision of either the United States or
Florida Constitutions.

No issue of material fact remains to be decided. The facts and
law convince this Court that Defendant’s Motion for Summary
Judgment should be granted and the Plaintiff's Motion for Summary
Judgment should be denied. Accordingly, Final Summary Judgment be
and the same is hereby entered in favor of Defendant and against the
Plaintiff.

The Court retains jurisdiction of this matter to consider the
issue of costs.

DONE AND ORDERED in Chambers at Miami, Dade County,
Florida this 21st day of August, 1992.

[S/
SIDNEY B. SHAPIRO
CIRCUIT COURT JUDGE

A-34

OPINION OF THE FLORIDA SUPREME COURT
SUPREME COURT OF FLORIDA
No. 82,836
THE CITY OF NORTH MIAMI,
Petitioner,
vs.
ARLENE KURTZ,

Respondent.
/

April 20, 1995
OVERTON, J.

We have for review Kurtz v. City of North Miami, 625 So.2d
899 (Fla. 3d DCA 1993). After the district court issued that decision,
it certified, in a separate order, the following question as one of great
public importance: DOES ARTICLE I, SECTION 23 OF THE
FLORIDA CONSTITUTION PROHIBIT A MUNICIPALITY FROM
REQUIRING JOB APPLICANTS TO REFRAIN FROM USING
TOBACCO OR TOBACCO PRODUCTS FOR ONE YEAR
BEFORE APPLYING FOR, AND AS A CONDITION FOR BEING
CONSIDERED FOR EMPLOYMENT, EVEN WHERE THE USE
OF TOBACCO IS NOT RELATED TO JOB FUNCTION IN THE
POSITION SOUGHT BY THE APPLICANT? This question involves
the issue of whether applicants seeking government employment have
a reasonable expectation of privacy under article I, section 23, as to
their smoking habits." We have jurisdiction. Art. I, s 3(b)(4), Fla.

1 Notably, because Florida’s constitutional privacy
provision applies only to government action, the provision would
not be implicated if a job applicant was applying for a position with
a private employer.

A-35

Const. For the reasons expressed, we answer the certified question in
the negative, finding that Florida’s constitutional privacy provision does
not afford Arlene Kurtz, the job applicant in this case, protection under
the circumstances presented.

The record establishes the following unrefuted facts, To reduce
costs and to increase productivity, the City of North Miami adopted an
employment policy designed to reduce the number of employees who
smoke tobacco. In accordance with that policy decision, the City issued
Administrative Regulation 1-46, which 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 their application for
employment. The intent of the regulation is to gradually reduce the
number of smokers in the City’s work force by means of natural
attrition. Consequently, the regulation only applies to job applicants
and does not affect current employees. Once an applicant has been
hired, the applicant is free to start or resume smoking at any time.
' Evidence in the record, however, reflects that a high percentage of
smokers who have adhered to the one year cessation requirement are
unlikely to resume smoking.

Additional evidence submitted by the City indicates that each
smoking employee costs the City as much as $4,611 per year in 1981
dollars over what it incurs for non-smoking employees. The City is a
self-insurer and its taxpayers pay for 100% of its employees’ medical
expenses. In enacting the regulation, the City made a policy decision
to reduce costs and increase productivity by eventually eliminating a
substantial number of smokers from its work force. Evidence presented
to the trial court indicated that the regulation would accomplish these
goals.

The respondent in this case, Arlene Kurtz, applied for a
clerk-typist position with the City. When she was interviewed for the
position, she was informed of Regulation 1-46. She told the intesviewer
that she was a smoker and could not truthfully sign an affidavit to
comply with the regulation. The interviewer then informed Kurtz that
she would not be considered for employment until she was smoke-free
for one year. Thereafter, Kurtz filed this action seeking to enjoin
enforcement of the regulation and asking for a declaratory judgment
finding the regulation to be unconstitutional.

A-36

i ae

- = Bas

In ruling on a motion for summary judgment, the trial judge
recognized that Kurtz has a fundamental right of privacy under article
I, section 23, of the Florida Constitution. The trial judge noted that
Kurtz had presented the issue in the narrow context of whether she has
a right to smoke in her own home. While he agreed that such a right
existed, he concluded that the true issue to be decided was whether the
City, as a governmental entity, could regulate smoking through
employment. Because he found that there is no expectation of privacy
in employment and that the regulation did not violate any provision of
either the Florida or the federal constitutions, summary judgment was
granted in favor of the City.

The Third District Court of Appeal reversed. The district court
first determined that Kurtz’ privacy rights are involved when the City
requires her to refrain from smoking for a year prior to being
considered to employment. The district court then found that, although
the City does have an interest in saving taxpayers money by decreasing
insurance costs and increasing productivity, such interest is insufficient
to outweigh the intrusion into Kurtz’ right of privacy and has no
relevance to the performance of the duties involved with a clerk-typist.
Consequently, the district court concluded that the regulation violated
Kurtz’s privacy rights under article I, section 23, of the Florida
Constitution. We disagree.

Florida’s constitutional privacy provision, which is contained in
article I, section 23, provides as follows: Right of privacy.--Every natural
person has the right to be let alone and free from governmental
intrusion into his private life except as otherwise provided herein. This
section shall not be construed to limit the public’s right of access to
public records and meetings as provided by law. This right to privacy
protects Florida’s citizens from the government’s uninvited observation
of or interference in those areas that fall within the ambit of the zone
of privacy afforded under this provision. Shaktman v. State, 553 So.2d
148 (Fla.1989). Unlike the implicit privacy right of the federal
constitution, Florida’s privacy provision is, in and of itself, a
fundamental one that, once implicated, demands evaluation under a
compelling state interest standard. Winfield v. Division of Pari-Mutuel
Wagering, 477 So.2d 544 (Fla.1985). The federal privacy provision, on
the other hand, extends only to such fundamental interests as marriage,
procreation, contraception, family relationships, and the rearing and
educating of children. Carey v. Population Serv. Int’l, 431 U.S. 678, 97

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S.Ct. 2010, 52 L.Ed.2d 675 (1977)

Although Florida’s privacy right provides greater protection than
the federal constitution, it was not intended to be a guarantee against
all intrusion into the life of an individual. Florida Bd. of Bar
Examiners re Applicant, 443 So.2d 71 (Fla.1983). First, the privacy
provision applies only to government action, and the right provided
under that provision is circumscribed and limited by the circumstances
in which it is asserted. Id. Further, "[djetermining ‘whether an
individual has a legitimate expectation of privacy in any given case must
be made by considering all the circumstances, especially objective |
manifestations of that expectation.’" Stall v. State, 570 So.2d 257, 260
(Fla.1990) (alteration in original) (quoting Shaktman, 553 So.2d at 153
(Fla.1989) (Ehrlich, C.J., concurring)), cert. denied, 501 U.S. 1250, 111
S.Ct. 2888, 115 L.Ed.2d 1054 (1991). Thus, to determine whether |
Kurtz, as a job applicant, is entitled to protection under article I, |
section 23, we must first determine whether a governmental entity is |
intruding into an aspect of Kurtz’s life in which she as a "legitimate |
expectation of privacy." If we find in the affirmative, we must then look
to whether a compelling interest exists to justify that intrusion and, if
so, whether the least intrusive means is being used to accomplish the
goal.

In this case, we find that the City’s action does not intrude into
an aspect of Kurtz’ life in which she has a legitimate expectation of
privacy. In today’s society, smokers are constantly required to reveal
whether they smoke. When individuals are seated in a restaurant, they
are asked whether they want a table in a smoking or non-smoking
section. When individuals rent hotel or motel rooms, they are asked if
they smoke so that management may ensure that certain rooms remain
free from the smell of smoke odors. Likewise, when individuals rent
cars, they are asked if they smoke so that rental agencies can make
proper accommodations to maintain vehicles for non-smokers. Further,
employers generally provide smoke-free areas for non-smokers, and
employees are often prohibited from smoking in certain areas. Given
that individuals must reveal whether they smoke in almost every aspect
of life in today’s society, we conclude that individuals have no
reasonable expectation of privacy in the disclosure of that information
when applying for a government job and, consequently, that Florida’s
right of privacy is not implicated under these unique circumstances.

ee al ee Ll ly

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a tt

In reaching the conclusion that the right to privacy is not
implicated in this case, however, we emphasize that our holding is
limited to the narrow issue presented. Notably, we are not addressing
the issue of whether an applicant, once hired, could be compelled by a
government agency to stop smoking. Equally as important, neither are
we holding today that a governmental entity can ask any type of
information it chooses of prospective job applicants.

Having determined that Kurtz has no legitimate expectation of
privacy in revealing that she is a smoker under the Florida constitution,
we turn now to her claim that the regulation violates her rights under
the federal constitution. As noted, the federal constitution’s implicit
privacy provision extends only to such fundamental interests as
marriage, procreation, contraception, family relationships, and the
rearing and educating of children. Carey. Clearly, the "right to smoke"
is not included within the penumbra of fundamental rights protected
under that provision. Grusendorf v. City of Oklahoma City, 816 F.2d
539 (10th Cir.1987) (the act of smoking a cigarette does not rise to the
level of a fundamental right). Moreover, even if we were to find that
some protected interest under the federal constitution were implicated
sO as to require a rational basis for the regulation we would still find
the regulation to be constitutional. Kelley v. Johnson, 425 U.S. 238, 96
S.Ct. 1440, 47 L.Ed.2d 708 (1976) (when assuming a liberty interest
exists in an employment regulation, regulation must be reviewed under
a rational basis test). As acknowledged by the district court, the City
has a legitimate interest in attempting to reduce health insurance costs
and to increase productivity. On these facts, the City’s policy cannot be
deemed so irrational that it may be branded arbitrary. Kelley. In fact,
under the special circumstances supported by the record in this case, we
would find that the City has established a compelling interest to support
implementation of the regulation. As previously indicated, the record
reflects that each smoking employee costs the City as much as $4,611
per year in 1981 dollars over what it incurs for non-smoking employees;
that, of smokers who have adhered to the one year cessation
requirement, a high percentage are unlikely to resume smoking; and
that the City is a self-insurer who pays 100% of its employees’ medical
expenses. We find that the elimination of these costs, when considered
in combination with the other special circumstances of this case,
validates a compelling interest in the City’s policy of gradually
eliminating smokers from its work force. We also find that the City is
using the least intrusive means in accomplishing this compelling interest

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because the regulation does not prevent current employees from
smoking, it does not affect the present health care benefits of
employees, and it gradually reduces the number of smokers through
attrition. Thus, we find the regulation to be constitutional under both
the federal and Florida constitutions.

For the reasons expressed, we answer the question in the
negative, finding that Florida’s constitutional privacy provision does not
afford the applicant, Arlene Kurtz, protection because she has no
reasonable expectation of privacy under the circumstances of this case.
Accordingly, we quash the district court’s decision, and we remand this
case with directions that the district court of appeal affirm the trial
court judgment.

It is so ordered.

GRIMES, C.J., and HARDING, WELLS and ANSTEAD, JJ.,
concur.

KOGAN, J., dissents with an opinion, in which SHAW, J.,
concurs.

KOGAN, Justice, dissenting.

As the majority itself notes, job applicants are free to return to
tobacco use once hired. I believe this concession reveals the
anti-smoking policy to be rather more of a speculative pretense than a
rational governmental policy. Therefore I would find it unconstitutional
under the right of due process. See Department of Law Enforcement
v. Real Property, 588 So.2d 957 (Fila.1991).

The privacy issue is more troublesome, to my mind. There is a
“slippery- slope" problem here because, if governmental employers can
inquire too extensively into off-job-site behavior, a point eventually will
be reached at which the right of privacy under article I, section 23
clearly will be breached. An obvious example would be an inquiry into
the lawful sexual behavior of job applicants in an effort to identify those
with the "most desirable" lifestyles. Such an effort easily could become
the pretext for a constitutional violation. The time has not yet fully
passed, for example, when women job applicants have been questioned
about their plans for procreation in an effort to eliminate those who

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may be absent on family leave. I cannot conceive that such an act is
anything other than a violation of the right of privacy when done by a
governmental unit.

Health-based concerns like those expressed by the City also
present a definite slippery slope to the courts. The time is fast
approaching, for example, when human beings can be genetically tested
so thoroughly that susceptibility to particular diseases can be identified
years in advance. To my mind, any governmental effort to identify
those who might eventually suffer from cancer or heart disease, for
instance, itself is a violation of bodily integrity guaranteed by article I,
section 23. Moreover, I cannot help but note that any such effort
comes perilously close to the discredited practice of eugenics.

The use of tobacco products is more troubling, however. While
legal, tobacco use nevertheless is an activity increasingly regulated by
the law. If the federal government, for instance, chose to regulate
tobacco as a controlled substance, I have no trouble saying that this act
alone does not undermine anyone’s privacy right. However, regulation
is not the issue here because tobacco use today remains legal. The sole
question is whether the government may inquire into off-job-site
behavior that is legal, however unhealthy it might be. In light of the
inherently poor fit between the governmental objective and the ends
actually achieved, I am more inclined to agree with the district court
that the right of privacy has been violated here. I might reach a
different result if the objective were better served by the means chosen.

SHAW, J., concurs.

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ORDER DENYING MOTION FOR REHEARING
SUPREME COURT OF FLORIDA
Wednesday, July 5, 1995
CASE NO. 82,836

THE CITY OF NORTH MIAMI,
FLORIDA,

Petitioner,
Vv.
ARLENE KURTZ,

Respondent.
as

Respondent’s Motion for Rehearing filed in the above cause is
hereby denied.

GRIMES, C.J., OVERTON, HARDING, WELLS and ANSTEAD, JJ.,
concur
SHAW and KOGAN, JJ., dissent

Sid J. White
Clerk, Supreme Court

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Fe Le ee ST ee ee NET * ey 2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2324%3A1. Public record. Not legal advice.