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Unformatted text preview: 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 [*1027] 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 [**4]
the regulation would accomplish these goals. 65 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 interviewer 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.
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 r...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08