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Const for the reasons expressed we answer the

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Unformatted text preview: A. Chamberlin of Mitrani, Rynor & Gallegos, P.A., Miami, Florida, for Respondent. JUDGES: OVERTON, J., GRIMES, C.J., and HARDING, WELLS and ANSTEAD, JJ., concur. KOGAN, J., dissents with an opinion, in which SHAW, J., concurs. OPINIONBY: OVERTON OPINION: [*1026] 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: 64 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 [**2] 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. n1 We have jurisdiction. Art. I, §3(b)(4), Fla. 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. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n1 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. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - 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 [**3] 1-46, which requires all job applicants to sign an affidavit...
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