Blowing smoke: Do smokers have a right? Limiting the privacy rights of cigarette smokers

Georgetown Law Journal, Jan 1998 by Tyler, Michele L

More controversial, however, is City of North Miami v. Kurtz,58 in which the Florida Supreme Court upheld the city's anti-smoking regulation that required all prospective city employees to sign an affidavit stating that they had refrained from using tobacco products for the prior year.59 Because Kurtz admitted that she could not truthfully sign the affidavit, she was told that she would no longer be a candidate for city employment.6 She then sued, claiming a violation of her federal and state constitutional privacy right to smoke outside the course of employment and seeking to enjoin enforcement of the regulation.6 Because the Florida constitution, unlike the Federal Constitution, contains an express privacy provision, the court applied a fundamental rights analysis under Florida constitutional law and a rational basis test under federal constitutional law.62 In applying strict scrutiny under the Florida constitution,63 the court explicitly discussed the informational privacy interest, holding that there is no legitimate expectation of privacy in revealing that one smokes, because smokers are required to reveal themselves as smokers in many instances in modern society.64 The court pointed to restaurants, hotels, car rentals, and smoking areas within the workplace as examples of instances in which a person must disclose information identifying herself as a smoker.65 Thus, because Kurtz could not meet the first step of the test-legitimate expectation of privacy-the court did not need to inquire into whether the city had a compelling interest to justify the policy. However, in applying the rational basis test for a federal privacy interest, the court held that not only had the city met the rational basis standard by offering a legitimate interest, but it had also met the strict scrutiny standard by establishing a compelling interest66 in reducing the health costs of its employees, increasing productivity, and saving taxpayer money.67 Thus, the court holds, albeit in dicta, that even if a fundamental federal or state constitutional right of privacy had been implicated, it would have been outweighed by the city's interests.68

The first part of the court's decision, which held that individuals do not have privacy interests under the Florida constitution in concealing their status as smokers because they must identify themselves as such in certain social situations, is unpersuasive. A smoker who does not wish to smoke during dinner, in a hotel room, or while driving a car is not compelled to disclose a smoking habit. A smoker could choose whom she wished to disclose information about her smoking habit to by making careful selections in the social arena. Nor does the court's reliance on these social situations explain why a smoker would not have a privacy interest in choosing not to disclose a smoking habit to an employer, especially in the face of growing employer concern about rising health care costs..69

However, this part of the court's decision is not necessary in light of the more important holding of the court: the city's interest in reducing the burden on taxpayers is not only legitimate, but also compelling enough to override the individual's privacy right, whether considered a fundamental right or merely a protected interest.70 This holding extends the Grusendorf rule that bona fide job requirements may override a privacy interest in smoking while off duty.