## Facts

- The City of North Miami adopted an employment policy to reduce medical costs and increase productivity by reducing the number of smokers in its workforce.
- The City issued Administrative Regulation 1-46 requiring all job applicants to sign an affidavit stating they had not used tobacco products for at least one year before applying.
- The regulation applied only to applicants; it did not apply to current employees, and those hired were free to begin or resume smoking after employment.
- The City presented evidence that smoking employees imposed substantially higher annual medical costs and that the City, as a self-insurer, paid all employee medical expenses.
- Arlene Kurtz applied for municipal employment, stated she could not truthfully sign the affidavit because she smoked, and was deemed ineligible unless she refrained from smoking for one year and reapplied.
- Kurtz sued, alleging the regulation violated the right of privacy under Article I, section 23 of the Florida Constitution.

## Issues

1. Whether Article I, section 23 of the Florida Constitution prohibits a municipality from requiring job applicants to abstain from tobacco use for one year and certify that fact as a condition of being considered for employment, even when tobacco use is unrelated to job duties.
2. Whether a government job applicant has a reasonable expectation of privacy in off-duty smoking habits sufficient to trigger Florida’s constitutional privacy protections.
3. If privacy interests are implicated, whether the City showed a compelling interest and used the least intrusive means.

## Decision

- The Florida Supreme Court answered the certified question “No,” quashed the district court’s decision, and approved the trial court’s summary judgment for the City.
- The Court held Kurtz did not have a legitimate, reasonable expectation of privacy in smoking status in the context of applying for government employment.
- Alternatively, the Court held that even if a privacy interest existed, the City demonstrated a compelling interest in reducing costs and increasing productivity and used a least-intrusive approach by limiting the restriction to applicants only.

## Legal Principles

- Florida’s constitutional right of privacy protects only interests in which an individual has a legitimate, reasonable expectation of privacy.
- When Article I, section 23 is implicated, the government must justify the intrusion by a compelling interest and employ the least intrusive means available.
- Off-duty smoking status, as treated in common public and commercial settings, is not an area of protected privacy for purposes of conditioning consideration for public employment.
- A public employer may condition initial hiring consideration on a tobacco-abstinence requirement where supported by cost and productivity evidence and structured to minimize intrusion (e.g., applying only to applicants and not regulating post-hire conduct).

## Conclusion

The Florida Supreme Court upheld a municipal policy requiring job applicants to be tobacco-free for one year and to attest to that fact, ruling that applicant smoking status is not constitutionally private in this context and that, in any event, the policy was justified by compelling fiscal and productivity interests and limited to applicants as the least intrusive method.


City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995)